State v. Sayre , 2013 Ohio 4108 ( 2013 )

[Cite as State v. Sayre, 2013-Ohio-4108.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-12-25
v.
HAROLD SAYRE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 11-CR-084
Judgment Affirmed
Date of Decision: September 23, 2013
APPEARANCES:
Robert C. Nemo for Appellant
Brent W. Yager and David J. Stamolis for Appellee
Case No. 9-12-25
WILLAMOWSKI, J.
{¶1} Defendant-appellant Harold Sayre (“Sayre”) brings this appeal from
the judgment of the Court of Common Pleas of Marion County finding him guilty
of aggravated vehicular homicide and operating a vehicle while under the
influence. For the reasons set forth below, the judgment is affirmed.
{¶2} On November 11, 2010, Sayre spent the day with his friend Jennifer
McClure (“McClure”). At the end of the day, Sayre was taking McClure home on
his motorcycle. Sayre lost control of the motorcycle and McClure was thrown
from the motorcycle. When the paramedics arrived, Sayre was transported to the
hospital by ambulance and eventually transported by helicopter to a hospital in
Columbus for severe injuries. McClure unfortunately was pronounced dead at the
scene. Sayre’s blood was tested at the hospital seven hours later and the blood
alcohol content was determined to be .064 at that time.
{¶3} On February 17, 2011, the Marion County Grand Jury indicted Sayre
with one count of aggravated vehicular homicide in violation of R.C.
2903.06(A)(1)(a), a felony of the second degree, and one count of operating a
vehicle under the influence in violation of R.C. 4511.19(A)(1)(a), a misdemeanor
of the first degree. A jury trial was held from February 13 until February 16,
2012. The jury returned a verdict of guilty on both counts. On March 20, 2012, a
sentencing hearing was held. The trial court sentenced Sayre to seven years in
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prison for the aggravated vehicular homicide and three days in jail for operating a
vehicle under the influence. The sentences were ordered to be served
concurrently. Sayre appeals from this judgment and raises the following
assignments of error.
First Assignment of Error
The verdicts against [Sayre] were against the manifest weight of
the evidence.
Second Assignment of Error
The trial court committed numerous evidentiary errors to the
prejudice of [Sayre] and failed to instruct the jury on
independent [intervening] cause of death.
Third Assignment of Error
[Sayre] was denied his constitutional right to a fair trial as a
result of the trial court stating that [Sayre] was not answering
questions and that [the State] would not get an answer from
Appellant.
Fourth Assignment of Error
[Sayre] was denied his right to effective assistance of counsel as a
result of his counsel’s failure to object to numerous evidentiary
matters.
The assignments of error will be addressed out of order in the interest of clarity.
{¶4} In the second assignment of error, Sayre claims that the trial court
committed numerous evidentiary errors and failed to instruct the jury on
independent, intervening causes of death. This assignment of error is based on
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four different alleged errors. The first alleged error is that the trial court allowed a
witness to testify to the cause of the accident without a proper foundation.
Evidence Rules 701 and 702 govern the use of opinion testimony.
If the witness is not testifying as an expert, the witness’
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 the witness’ testimony or the determination of
a fact in issue.
Evid.R. 701.
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.
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Evid.R. 702. This court has previously addressed the issue as to whether an
officer who was not present at the accident and is not an expert witness can testify
as to the cause of the accident and determined that the answer to that question is
no. Petti v. Perna, 86 Ohio App.3d 508 (3d Dist. 1993). In Petti, this court held
that in order for an officer to offer an opinion as a lay witness, the officer must
meet the requirements of Evidence Rule 701. This means that the officer must be
basing the testimony on his or her own perceptions. Id. at 513. To testify as an
expert witness, the officer’s qualification to testify as an expert must be present on
the record. Id. Without meeting the requirements of Evidence Rules 701 or 702,
an officer may not offer opinion testimony as to the cause of the accident. Id.
{¶5} In this case Ohio State Trooper David G. Shockey (“Shockey”)
testified for the state. Shockey testified that he had received specialized training in
crash investigation. Tr. 245. Shockey went to the scene the day after the accident
to take daytime photos. Tr. 247. At the scene, Shockey observed a rut in the yard
that ran in a straight line from the road to the fence line. Tr. 249. Shockey
testified that he saw no indication at the scene that the motorcycle had traveled in
any manner other than a straight line. Tr. 252. On cross-examination, Shockey
admitted that he was not involved in the investigation in any manner other than
taking the photographs and examining the tires of the motorcycle. Tr. 257. He
also stated that he did not act as an accident reconstructionist on this case. Tr.
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266. According to Shockey, nothing that he did contributed to determining the
cause of the accident. Tr. 268. However, on redirect examination, Shockey
testified as follows.
Q. Based on what you saw when you investigated the scene,
your review of the report, is it clear that the person just – the
driver, the Defendant, he just missed that curve and drove
straight off the road?
Mr. Coulter: Objection in all due respect. He said he was not
able to determine the cause of the accident now they’re having
him testify –
The Court: Overruled. He can answer.
Q. So he just drove straight off the road, is that correct?
A. From what I observed at the scene following the crash
that’s what my impression was.
***
Q. [On recross-examination] You can’t say what caused him to
go straight off the road, can you sir?
A. No, I cannot.
Tr. 269-270. Although the original question indicated that the Defendant “just
missed that curve and drove straight off the road”, the question to which Shockey
provided an answer was whether the motorcycle went straight off the road.
Shockey indicated that based on the ruts from the tire at the scene, that is what
happened. On recross-examination, Shockey testified that he could not determine
why the motorcycle went straight off the road. Thus, Shockey did not testify as to
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the cause of the accident. Instead, he only testified to what he determined from his
own observations, which is in compliance with Evidence Rule 701.
{¶6} In addition, Sayre claims that the trial court erred by permitting a
second witness, paramedic Matt Kokos (“Kokos”) to testify as an expert without
laying a foundation for his qualifications as an expert. Kokos testified as follows.
Q. Was the Defendant showing any signs of pain at that time?
A. Not severe pain. I mean when I touched it he did grimace,
but he didn’t yell out in pain.
Q. Would you expect somebody with that injury to show more
signs of pain?
A. Yes.
Mr. Coulter: Objection, speculation.
The Court: Overruled.
Q. Thank you. Did that strike you as strange or unusual in
any way?
A. Given the situation, the odor of alcohol, most patients don’t
have as high of a pain – they don’t notice pain as well when
they’ve been drinking. It’s just –
Mr. Coulter: Objection. I don’t know if he’s qualified –
The Court: I don’t know if he’s qualified for that. Let’s get off
of that.
Tr. 207-208. There is no question that the ideal procedure upon sustaining an
objection on a question which has already been answered would be to strike the
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answer and/or instruct the jury to disregard the answer. That was not done in this
case. At no time was the jury specifically told to disregard all answers to which an
objection was sustained.1 However, Sayre did not request such an instruction.
Additionally, Sayre does not point to how the alleged error was prejudicial. On
cross-examination Kokos admitted that all of the symptoms he attributed to
alcohol consumption could have been caused by shock due to what had occurred.
Tr. 213. Without some evidence of prejudice, any error would be harmless.
{¶7} Sayre also objected to the testimony of paramedic Rocky Booth
(“Booth”). Booth testified as follows.
Q. Did the Defendant seem to be in very much pain with this
injury [the broken femur].
Mr. Coulter: Objection, speculation.
The Court: I’ll let him answer if he can.
A. Not as much as I would have suspected.
Q. Did you smell any alcohol on him?
A. Yes.
Q. Was there anything that you observed to make you think
that he may be under the influence of alcohol or drugs?
A. Yes.
1
The jury instructions simply instructed the jury to disregard all statements which had been stricken by the
trial court and those that the trial court specifically told the jury to disregard. The trial court also told them
not to speculate as to an answer not yet given when an objection was sustained. However, the trial court
did not instruct the jury to disregard any response given to a question when the objection was sustained.
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Q. Can you recall what that was?
A. Just the fact that his pain wasn’t as great as it typically
would present –
Mr. Coulter: Again objection, speculation.
The Court: Overruled. Go ahead.
A. That’s one of the more painful bones to break in the body.
And they’re quite painful. Usually the only type of relief we can
give someone is to put them in a traction splint and pull the
muscles apart which usually spasm that causes the pain. He
referred to some pain in the leg, but it wasn’t that much of a
concern. And there was – there was the odor of alcohol.
Tr. 230. Although this testimony may have been partially subjective in its answer,
Booth was testifying that based upon what he observed, Sayre did not appear to be
in much pain. He then went further to testify that he smelled alcohol on Sayre and
made the connection that the ingestion of alcohol was lessening Sayre’s pain. All
of this was based upon his independent observations, which is permitted pursuant
to Evidence Rule 701.
{¶8} Sayre also objected to the testimony of Ohio State Trooper Aaron
Williams (“Williams”). Williams testified as follows.
A. When I first made contact I was within – like a foot of him –
two feet of him and there was some – the medical personnel was
also standing around him. The subject – there was a very strong
odor of an alcoholic beverage coming from his person, his eyes
were red, bloodshot, and glassy; his speech was slurred, and one
thing that was noticed, he wanted a cigarette, and with my
experience what I’ve noticed is if I just make a traffic stop
working midnight shift and I walk up to a car usually from later
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on if you kind of look back over that whole stop, if that person
lights up a cigarette I can say from experience most of the time
that person is under the influence of something.
Mr. Coulter: Objection, that’s speculation. There’s no
foundation.
The Court: Overruled. Continue.
Q. Go ahead.
A. Is the reason that people want to light a cigarette
immediately when they are impaired is they’re trying to disguise
the odor of whatever it is that they were under the influence of.
So –
Mr. Coulter: Objection for the record. Again he’s speculating,
for the record, my objection.
The Court: Overruled. Continue.
A. Is when someone is – when I stop someone on midnight shift
and I see a freshly lit cigarette from my experience the majority
of the time I’m going to be smelling the odor of alcohol later and
we’ll go from that point on to see if they’re impaired or not, but
the lighting of a cigarette immediately is usually to mask the
odor from my experience.
***
Q. Did he appear lethargic to you?
A. The way he was holding his cigarette in his hand, it was like
his – he’s just very limp, I guess if you’re holding a cigarette, I
mean I don’t smoke, but I see people, and if you’re holding
anything, a pen and you’re writing, you have some form of
firmness to yourself, you know, just normal, like you’re not just
sitting there like limp. Like I can remember the cigarette was
between his fingers and it’s just loosely hanging there and his
wrist is just limply – you know, he’s got his elbow down resting
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on his elbow, and he’s just holding it. Very limp like. If you’re
gonna smoke a cigarette you’re gonna be a little more firm in
your – just normal.
Tr. 404-06. Sayre claims that Williams was testifying as to his opinion. However,
the trial court determined that Williams was testifying to what he observed and to
what he has learned from his experience. This is not the same as testifying to his
opinion. As a lay witness, Williams is permitted to testify to his own observations
and what he learned from them. Thus, this testimony does not violate Evidence
Rule 701.
{¶9} The second issue raised by Sayre is that the trial court did not allow
him to explore the psychiatric status of one of the witnesses. On direct
examination Amanda Clark (“Clark”) testified that she observed the motorcycle
just prior to the accident and then soon after it left the road. Tr. 355-57. On cross-
examination, the witness stated that before giving the statement to the police, she
spoke with her mother, her husband, and her psychiatrist. Tr. 360. Clark testified
that she was under psychiatric care at the time of the accident. Tr. 361. However,
when defense counsel asked the witness if she was still under psychiatric care, the
trial court ordered the defense to move on. Tr. 361. Sayre claims that he should
have been allowed to inquire into the psychiatric issues more pursuant to Evidence
Rule 616(B).
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{¶10} Evidence Rule 616(B) provides that a witness may be impeached by
showing a “defect of capacity, ability, or opportunity to observe, remember, or
relate” information. Evid.R. 616(B). “In appropriate cases psychiatric testimony
can be used to impeach a witness whose ability to perceive, remember, or relate
events is allegedly impaired by organic illness or a psychiatric disorder.” State v.
Wilson, 8 Ohio App.3d 216, 220 (8th Dist. 1982). The trial court has broad
discretion as to the admission or exclusion of evidence. Columbus v. Taylor, 39
Ohio St.3d 162 (1988).
{¶11} Initially, this court notes that the question to which the State objected
and the trial court sustained was whether Clark was under psychiatric care at the
time of the trial. Counsel for Sayre did not argue the relevance of the issue to the
trial court. Sayre was allowed to set forth that at the time of the incident, Clark
was under psychiatric care. Sayre did not ask any questions which would clarify
the reasons for the care or provide any basis to show that the continued care
affected the ability of the witness to provide testimony. There was no proffer that
would indicate how being under a psychiatrist’s care affected the witness’ ability
to observe and testify to what she observed. Without some showing of prejudice,
this court has no basis upon which to find that the trial court abused its discretion.
{¶12} The third issue raised by Sayre is the testimony given by Harry
Plotnick (“Plotnick”) as to the blood alcohol level at the time of the accident.
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Sayre claims that the testimony was not given based upon an opinion to a
reasonable degree of scientific certainty. “Generally, ‘an expert opinion is
competent only if it is held to a reasonable degree of scientific certainty.’” State v.
Elam, 3d Dist. Hancock No. 5-02-57, 2003-Ohio-1577, ¶ 7 (quoting State v.
Benner, 40 Ohio St.3d 301 (1988), abrogated on other grounds by Horton v.
California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112). However, experts in
criminal cases may testify in terms of possibilities rather than in terms of
reasonable degree of scientific certainty or probabilities. State v. Lang, 129 Ohio
St.3d 512, 2011-Ohio-4215, ¶77. Once the jury understands the possibilities, it
can then assign the weight to be given to the evidence. Id.{¶13} A review of the record in this case indicates that at no time did
Plotnick testify to a reasonable degree of scientific certainty. In addition, Plotnick
did not testify in terms of possibility. Instead he testified that this was the result
using generally accepted scientific principles to do the calculations.
Q. You started off with a .064, is that correct?
A. Yes, the headspace alcohol analysis test done by the Ohio
State Highway Patrol Laboratory indicated that, and I believe it
was 5:21 in the morning, that the blood alcohol level was .064
grams per 100 milliliters of blood.
Q. If you base that and take it with the last time the Defendant
had a drink at approximately 9:30 based on his own report, the
fact that he had a strong odor of alcohol, red glassy eyes, that he
was a driver of a motorcycle which went left of center off a
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roadway, are you able to make any type of determination based
on those things along with the 064?
A. Well, you’re talking about –
Q. As far as an extrapolation goes?
A. Yeah, I can – I can extrapolate and at least give you a –
what I believe to be a minimum blood alcohol level at the time of
the collision or the accident.
Q. And based on those criteria did you do that in this
particular case?
A. I did.
Q. What was your result?
A. Mr. Coulter: Objection for the record.
The Court: Noted. Go ahead.
A. Based upon generally accepted scientific principles with
respect to the disappearance of alcohol from the bloodstream I
concluded that the blood alcohol level at the time of this collision
about 9:30 (sic), that the blood alcohol level was not less than a
.16 grams per 100 milliliters of blood.
***
Q. Going back to the gas chromatograph, the headspace test
the State Highway Patrol uses, is that an accurate test?
A. I can’t speak to this particular test on this particular
individual, but I am familiar with the way that the State
Highway Patrol Laboratory performs alcohol analysis using an
alcohol headspace method and a gas chromatographic method,
and it’s my belief that it is the most reliable method for testing
blood alcohol that’s used in the United States today.
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Tr. 510-11, 513. Upon cross-examination, Plotnick stated that all of his testimony
was based upon the presumption that the original figure of .064 was correct. Tr.
525. Throughout his testimony Plotnick repeatedly stated that his calculations
were correct regardless of any factors. Thus, although he did not testify directly to
the degree of certainty, the jury could infer from the testimony Plotnick gave that
he was very certain of his results. This satisfies the requirement of the Ohio
Supreme Court that the jury be able to determine the weight of the evidence.
{¶14} The final issue raised under the second assignment of error is that the
trial court committed plain error by not giving an instruction on an independent
intervening cause of death when the entire defense was premised upon the notion
that McClure was the cause of her own death by pulling on the driver’s arm
causing the motorcycle to leave the road. A review of the record reveals that at no
time did Sayre request an instruction for an independent intervening cause of
death.
In reviewing the sufficiency of jury instructions given by a trial
court, the proper standard of review for an appellate court is
whether the trial court’s refusal to give a requested jury
instruction constituted an abuse of discretion under the facts
and circumstances of the case. State v. Wolons (1989), 44 Ohio
St.3d 64, 68, 541 N.E.2d 443. A strong presumption exists in
favor of the propriety of jury instructions. Burns v. Prudential
Secs., Inc., 167 Ohio App.3d 809, 2006-Ohio-3550, 857 N.E.2d
621, ¶ 41. Generally, the trial court should give requested jury
instructions “if they are correct statements of the law applicable
to the facts in the case.” Murphy v. Carrollton Mfg. Co. (1991),
61 Ohio St.3d 585, 591, 575 N.E.2d 828. Instructions that in their
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totality are sufficiently clear to permit the jury to understand
the relevant law will not be the cause of a reversal upon appeal.
Burns at ¶ 41. Whether the jury instructions correctly state the
law is a question of law, which we review de novo. Murphy at
591.
Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio App.3d 89, 2010-Ohio-
4173, ¶30 (3d Dist.). Since Sayre failed to request the jury instruction, we would
review any alleged error with a plain error standard. State v. Stallings, 89 Ohio
St.3d 280, 2000-Ohio-164, 731 N.E.2d 159.
{¶15} Here, Sayre claims that the trial court committed plain error by
failing to sua sponte give a jury instruction on an independent intervening cause of
death. Sayre argues that his defense was based upon the theory that the accident
occurred not because he was intoxicated and missed the turn, but on the theory
that McClure was intoxicated, lost her balance, and grabbed his arm while he was
driving the motorcycle to prevent herself from falling. Sayre claims that this
action by McClure was what caused him to leave the road and crash the
motorcycle, with the crash leading to the death of the decedent. However, Sayre
cites to no authority that would require the trial court to sua sponte give a jury
instruction on the defense’s theory of the case. A review of the Ohio Jury
Instructions (“OJI”) shows that the instructions given by the trial court complied
with Ohio Law. OJI §417.23. The trial court gave an accurate recitation of Ohio
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Law as to other causes and intervening causes. OJI §417.25. In addition, the
correct instruction for an independent intervening cause of death is as follows.
INDEPENDENT INTERVENING CAUSE OF DEATH. If the
defendant inflicted an injury not likely to produce death, and if
the sole and only cause of death was [caused by another person],
the defendant who inflicted the original injury is not responsible
for the death.
OJI §417.25(3). Since the injuries caused by the accident were what caused the
death of the decedent, this instruction would not have exonerated Sayre. Thus,
any error would be harmless. Having found no prejudicial error in the issues
raised by the second assignment of error, the second assignment of error is
overruled.
{¶16} In the third assignment of error, Sayre claims that the trial court erred
by making prejudicial comments.
The judge of the trial court shall control all proceedings during
a criminal trial, and shall limit the introduction of evidence and
the argument of counsel to relevant and material matters with a
view to expeditious and effective ascertainment of the truth
regarding the matters in issue.
R.C. 2945.03. In doing so, the trial court must be careful as to any comments it
makes that may have an effect upon the jury. State v. Wade, 53 Ohio St.2d 182,
373 N.E.2d 1244 (1978) (vacated and remanded on other grounds).
It must be noted that no absolute prohibition exists to preclude
comment by a court during trial. It must also, however, be
borne in mind that ‘* * * the influence of the trial judge on the
jury is necessarily and properly of great weight * * *.’”
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State v. Thomas, 36 Ohio St.2d 68, 71, 303 N.E.2d 882 (1973) (quoting Starr v.
United States, 153 U.S. 614, 626, 14 S.Ct. 919, 38 L.Ed. 841). “It is well known,
as a matter of judicial notice, that juries are highly sensitive to every utterance by
the trial judge, the trial arbiter * * *.” Bursten v. United States, 395 F.2d 976, 983
(C.A. 5, 1968).
Generally, in determining whether a trial judge’s remarks were
prejudicial, the courts will adhere to the following rules: (1) The
burden of proof is placed upon the defendant to demonstrate
prejudice, (2) it is presumed that the trial judge is in the best
position to decide when a breach is committed and what
corrective measures are called for, (3) the remarks are to be
considered in light of the circumstances under which they are
made, (4) consideration is to be given to their possible effect
upon the jury, and (5) to their possible impairment of the
effectiveness of counsel.
Wade, supra at 187. “’In exercising his duty to control a criminal trial pursuant to
R.C. 2945.03, the trial judge is to remain impartial and refrain from making
comments which may influence a jury.’” State v. McCarley, 9th Dist. Summit No.
22562, 2006-Ohio-1176, ¶9 (quoting State v. Boyd, 63 Ohio App.3d 790, 794, 580
N.E.2d 443 (1989)). “A judge’s ‘participation by * * * comment must be
scrupulously limited, lest the court, consciously or unconsciously, indicate to the
jury its opinion on * * * the credibility of a witness.’” Id. (quoting State ex rel.
Wise v. Chand, 21 Ohio St.2d 113, 256 N.E.2d 613 (1970)). “In determining
whether a trial judge’s remarks are so prejudicial as to [be harmful], we must
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consider the circumstances under which they were made.” State v. Ward, 3d Dist.
Allen No. 1-97-56, 1998 WL 165006 (April 1, 1998).
{¶17} In this case, Sayre points to a few instances where the trial court
made comments concerning a witness. The comments were made during cross-
examination and taken in context were as follows.
Q. Okay. And you admit that you did have to come in because
your hoodie was tied so tight?
A. Yes, sir.
Q. You needed help to get it off?
A. I already answered this once, yes, sir.
Q. I understand, that was on Direct. And you had to have her
untie it for you?
A. Yes, sir.
Q. Wasn’t that because you were so intoxicated you couldn’t
do it yourself?
A. No, sir, it’s because I ain’t got eyes in my chin.
Q. It’s a yes or no question.
A. No, sir.
Q. And – so you agree pretty much with everything Donna
Galati says and what Amber Sexton says except again when she
said you were intoxicated or trashed?
A. No, sir, I don’t agree with nothing they said because all
they’re doing is try (sic) to incriminate me.
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Q. That’s it. What I’m saying is you agree with ‘em up to the
point it incriminates you?
A. I don’t remember agreeing with ‘em.
Q. Okay. You went to their house right?
A. I said that.
Q. Okay. You passed Donna in the hallway?
A. I said that.
Q. You said that Amanda was up there, you were up there?
A. And I said that.
Q. And you said they helped untie the string that – that had to
happen, right? I know you’ve said all that sir, what I’m saying
is you agree with ‘em up to the point it incriminates you, isn’t
that true?
A. I don’t see nothing incriminating about answering the
questions that I’ve answered. When you are talking about them
purposely making lies to incriminate me I don’t agree.
Q. Okay. That’s what my point is. When they come to the
point when they say your (sic) were intoxicated that’s when you
don’t agree with ‘em?
A. No, sir.
Mr. Coulter: Just for the record I’m going to object to the
repetitiveness of the questions and bordering on the badgering
for the record. Thank you, Your Honor.
The Court: He is on Cross and your client’s not answering his
questions. Let’s continue.
Tr. 681-83.
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Q. * * *[T]his dent goes from the outside of your gas tank into
here, makes a dent right?
A. No, sir, that’s the left side of my –
Q. The left side?
A. The right side of my head bouncing off the left side of the
gas tank.
Q. So your body came over like that?
A. No, sir, my body’s like that.
Q. You just told me the right side of you head hit the left side –
A. The right side of my head hit the left side of the gas tank.
Q. The right side of your head?
A. The right side of my head.
Q. This side?
A. Yes, sir.
Q. This is my left. So your head had to go like that?
A. How big is a gas tank, sir?
Q. Did your head have to go like that?
A. No, sir, my head bounced off the gas tank.
Q. Well you’re showing going straight down?
A. No, I’m showing to the right. I’m sorry, excuse me, I don’t
understand your line of questioning here.
Q. Well first –
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A. Because you’re not a vehicle – this is not what you do right?
Q. Well look at that dent. That’s a crease, isn’t it?
A. No, that’s a dent from my head.
Q. Let’s look then. These have already been identified, they’re
true and accurate, these pictures of your motorcycle after the
accident, right?
A. Yes, sir.
Q. State’s Exhibit 16, same dent, it’s on the left side – isn’t that
a scraping motion into that dent, see where the paint’s been
peeled off?
A. No, the paint – the paint will flex and peel off, the paint will
flex and crack right off.
Q. So you’re saying that your head made that crease all the
way across there?
A. Yes, sir.
Q. Let’s show it a little better. State’s Exhibit 17.
A. That’s beautiful.
Q. It starts on the left and goes to the right. See the crease?
A. Sir, I can’t explain it to you no more. I mean, I hit my head
on the gas tank that caused the dent. That’s all I can say.
Q. Can you see how that’s not possible.
A. That is very possible.
Q. How did your head make that crease?
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Case No. 9-12-25
A. Just like that, sir.
Q. You just went to your left side with the left side of your
head?
A. No, I didn’t –
Mr. Coulter: I think we asked and answered, asked and
answered, objection for the record. Thank you.
A. Yeah.
Mr. Yager: He’s not answering.
Mr. Coulter: He’s not answering the way you want him to.
Mr. Yager: I’ll move on, Your Honor.
The Court: I don’t think you’re gonna get to the bottom of this.
Let’s go.
Tr. 698-700.
Q. * * * Can you explain to me how seven hours later you’re
testing .064 still?
A. I have a –
Mr. Coulter: Objection. That’s for the experts rather than
himself –
The Court: Hold it. He’s entitled to ask that.
Mr. Coulter: Okay.
A. I have a blood blockage disease, sir. I take blood thinners
and blood pressure meds.
Q. So you’re saying that’s why you tested so high?
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Case No. 9-12-25
A. I didn’t think it was high. It wasn’t over the legal limit,
right?
Q. It’s seven hours later.
A. And all I’m doing is laying there getting fed morphine.
Q. Okay. Let’s go –
A. I’m not up jogging around eating.
Q. When Mike Wheeler said that he smelled alcohol and you
appeared intoxicated at the scene, is he lying?
A. I’m not sure who Mike Wheeler was.
Q. The Deputy Sheriff, our first witness?
A. Is that the one that said he was on the scene before the
EMT or after the EMT?
Q. He’s the first one that testified.
A. So was he there before the EMT or after, I don’t
understand.
Q. Sir, you don’t ask the questions, I do.
A. No, he was not the first person on the scene.
Q. I didn’t ask you that. I asked you when he said he smelled
alcohol on you and stated that you were intoxicated and he saw
bloodshot, glassy eyes and slurred speech, is he lying about that?
A. I don’t think there was ever any test at that time to say that
I was intoxicated, sir.
Q. I’m gonna get to that in a minute, too. But you’re not
answering my question, is he lying?
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Case No. 9-12-25
A. I’m trying maybe I don’t understand, sir.
Q. Then I’m gonna move on because you don’t seem to want to
answer my questions.
When this Trooper said he got there, he smelled a strong odor of
alcohol coming from your breath, that you appeared intoxicated,
you had bloodshot, glassy eyes, you had slurred speech, is he
lying or is he wrong?
A. That was his observation, sir. I cannot judge that.
Q. Alright. When he stated in his experience as a Trooper that
you were impaired and under the influence of alcohol, how
about that? Was that true, is that true?
A. I don’t think there was ever any test performed at that time
to prove that, sir.
Q. I know there wasn’t. I’m asking you is he telling the truth
about that or is he lying?
Mr. Coulter: I’m gonna object to this is (sic) all repetitiveness,
the question is whether or not he was intoxicated not what his
opinion was – just repeat through every witness –
The Court: I don’t think you’re gonna get an answer. Move on.
Tr. 706-09. A review of the record indicates that the trial court was frustrated with
the testimony of Sayre and may have indicated as much to the jury. The
comments may have implied that the witness was not credible and that the
defendant was being evasive with his answers. A trial judge must be cautious not
to relay frustration with a testifying witness to the jury. McCarley, supra.
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{¶18} Although the comments may have been questionable, that does not
make them prejudicial. Under the test set forth in Wade, the defendant has the
burden of showing prejudice. This court must also look to see if the trial court
took any steps to remedy the effect of any comments. Wade, supra. When a trial
court gives an appropriate jury instruction ordering the jury to disregard any
comments of the judge, the damage of the comments can be mitigated. Ward,
supra. Here, the trial court specifically instructed the jury as follows.
You are the sole judges of the facts, the credibility of the
witnesses, and the weight of the evidence. To weigh the evidence
you must consider the credibility of the witnesses, including all
who testified. * * *
***
If during the course of the trial the Court said or did anything
that you consider an indication of the Court’s view of the facts,
you are instructed to disregard it. Likewise, if it appears to you
that the Court has emphasized any portion of this instruction to
favor either the State of Ohio or the Defendant, no such
emphasis was intended and you are instructed to disregard it.
Tr. 851-52, 859. Given the instructions to the jury to disregard the statements of
the trial court, Sayre has not met his burden of demonstrating prejudice to the
defendant by the comments. Thus, the third assignment of error is overruled.
{¶19} Sayre claims in the first assignment of error that the verdict is against
the manifest weight of the evidence. The question of manifest weight of the
evidence does not view the evidence in a light most favorable to the prosecution.
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Case No. 9-12-25
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial to support one side
of the issue rather than the other. It indicates clearly to the jury
that the party having the burden of proof will be entitled to their
verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question
of mathematics, but depends on its effect in inducing belief.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (1997) (citing Black’s
Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the
exceptional case in which the evidence weighs heavily against conviction. Id.Although the appellate court acts as a thirteenth juror, it still must give due
deference to the findings of fact made by the jury.
The fact-finder, being the jury, occupies a superior position in
determining credibility. The fact-finder can hear and see as well
as observe the body language, evaluate voice inflections, observe
hand gestures, perceive the interplay between the witness and
the examiner, and watch the witness’ reaction to exhibits and the
like. Determining credibility from a sterile transcript is a
Herculean endeavor. A reviewing court must, therefore, accord
due deference to the credibility determinations made by the fact-
finder.
State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist. 1998).
{¶20} The first witness for the State was Marion County Sheriff’s Deputy
Michael Wheeler (“Wheeler”). Wheeler testified that he was the first on at the
scene of the accident at issue in this case, before the arrival of the ambulance. Tr.
180. Wheeler testified that when he spoke with Sayre, he could smell alcohol on
his breath and Sayre had bloodshot eyes, slurred speech, and slow motor skills. Tr.
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Case No. 9-12-25
181. All around the scene were beer cans. Tr. 181. Although it appeared that
Sayre was in pain, he did not mention it. Tr. 183. On cross-examination, Wheeler
testified that he did not conduct any sobriety tests. Tr. 188-89. He also testified
that he did not check to see if the beer cans were empty, full, or broken. Tr. 193.
He also testified that there was nothing unusual about a smoker under stress
wanting to have a cigarette. Tr. 195-96. However, on cross-examination, Wheeler
testified that there was no doubt in his mind that Sayre was intoxicated the night of
the accident. Tr. 198.
{¶21} The second witness for the State was Kokas. Kokas testified that he
was there before any police officer. Tr. 204, 222. Kokas’ first action was to check
on McClure as she appeared to be more seriously injured. Tr. 204. Finding no
heart rhythm or respiration, McClure was pronounced dead at the scene and Kokas
turned his attention to Sayre. Tr. 205. Kokas noted that Sayre appeared to have
broken bones in his right leg and that he smelled a moderate degree of alcohol
about his person. Tr. 206-207. Although Sayre was showing signs of pain, it was
not as severe as Kokas expected given the injuries suffered. Tr. 207. Kokas also
noted that Sayre’s speech appeared slightly slurred. Tr. 208. When Kokas asked
Sayre about ingestion of alcohol or drugs, Sayre told him that he had some to
drink, though he did not specify an amount. Tr. 209. On cross-examination,
Kokas admitted that the behavior he observed that could be attributed to
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Case No. 9-12-25
intoxication could also be attributed to shock. Tr. 213. The Glass Coma Scale
rating was applied to Sayre. Tr. 214. The higher the score, the more oriented and
appropriate the person is. Tr. 214. On a scale of 1 to 15, Sayre scored a 15
indicating that he was very oriented. Tr. 215-17.
{¶22} Booth was the second EMT that came to the scene with Kokas.
Booth testified that he helped treat Sayre at the scene. Tr. 229. He testified that
the injury was very painful, but Sayre did not appear to be in that much pain. Tr.
229-30. Booth also testified that he smelled alcohol on Sayre. Tr. 230. On cross-
examination, Booth testified that he could not tell whether Sayre was intoxicated or
not. Tr. 236. Booth also testified that it is difficult to tell the difference between a
person suffering from a head injury and a person who is intoxicated. Tr. 240-41.
{¶23} Shockey testified next for the State. As discussed above, Shockey
testified that he went to the scene and took pictures during the day. He also
examined the tires on the motorcycle. Tr. 246-47. Shockey testified that there
were no problems with the motorcycle other than it had been in a wreck. Tr. 248.
He also testified that it appeared that the motorcycle had left the roadway in a
straight line until it hit the fence. Tr. 249. Shockey was not able to testify as to the
cause of the accident. Tr. 268.
{¶24} The next witness for the State was Cassandra Friar (“Friar”). Friar
testified that McClure was her best friend and she last saw her on the date of the
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accident. Tr. 273. Friar testified that McClure and Sayre came to her house that
evening between 9:30 and 10:00 pm. Tr. 274. McClure and Sayre brought a 12
pack of beer with them and they both drank some of it. Tr. 276. She also testified
that she observed Sayre taking some Vicodin and that he smoked marijuana with
her. Tr. 276-77. When Sayre entered her home, she described him as staggering.
Tr. 278. The couple was at her home for 40-45 minutes before they left. Tr. 278.
When they attempted to leave, the motorcycle fell over. Tr. 279. On cross-
examination McClure admitted that she was testifying to avenge the life of [her]
friend.” Tr. 296.
{¶25} Donna Galati (“Galati”) is McClure’s mother. She testified that she
saw McClure and Sayre at her son’s home the evening of the accident. Tr. 302.
She testified that she smelled alcohol on Sayre that evening, that his eyes appeared
glazed, and he appeared off balance. Tr. 303. On cross-examination she admitted
that she only saw Sayre in passing and did not spend any time with him. Tr. 307.
She also admitted that she did not currently like Sayre and had never liked him. Tr.
310. She also admitted that McClure was intoxicated the night of the accident. Tr.
311.
{¶26} Amanda Sexton (“Sexton”) testified that she saw McClure and Sayre
the night of the accident between 10:00 and 11:00 pm at her home. Tr. 317. She
testified that McClure seemed out of it. Tr. 317. Sayre seemed very drunk in
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Sexton’s opinion. Tr. 318. Sayre was staggering around and was unable to untie a
hoodie he had tied. Tr. 318. On cross-examination Sexton testified that Sayre was
able to maneuver the stairs without any problem. Tr. 323. She also admitted that
she had “hard feelings for him” because of what happened to McClure. Tr. 330.
{¶27} The eighth witness for the State was Ohio State Trooper Frank
Applegate (“Applegate”). Applegate was sent to the hospital to get a blood sample
from Sayre to test his blood alcohol level. Tr. 337. When he arrived, Sayre was
receiving a CAT scan. Tr. 337. Although he tried to explain to Sayre what he
wanted, Sayre did not seem to understand that this blood draw was different from
the one done by the hospital. Tr. 338. Eventually Applegate gave up and marked
the form as a refusal. Tr. 338. Applegate testified that Sayre’s demeanor was
uncooperative and that Sayre appeared to be impaired. Tr. 338-39. Applegate
observed an odor of alcohol along with glassy and bloodshot eyes. Tr. 339. On
cross-examination, Applegate testified that he knew Sayre was injured, but did not
know the extent of the injuries or the effect they had on Sayre. Tr. 343-46. Other
than requesting a blood test from Sayre, Applegate had no involvement with the
case. Tr. 347. Applegate testified that he based his opinion that Sayre was
intoxicated on the odor of alcohol and the fact that Sayre’s eyes were bloodshot
and glassy. Tr. 350.
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Case No. 9-12-25
{¶28} The State next presented the testimony of Clark. Clark testified that
on the night of the accident, she was driving and saw a motorcycle close to the
middle line. Tr. 355. She testified that she passed it and when she looked back,
she saw it had wrecked. Tr. 355. She noticed the wreck because as she pulled into
the parking lot of her employer, she noticed the headlight go down and back up, so
she watched it go off the road, into the ditch, and up the other side. Tr. 356. At the
time she passed the motorcycle, the passenger appeared to be limply holding the
driver. Tr. 356-57. On cross-examination, Clark testified that she saw the
motorcycle veer quickly to the left, then right, as if it were losing control. Tr. 368.
The turns looked “jerky”. Tr. 370. By the time the driver corrected from the quick
right turn, the motorcycle was lying on its side and sliding across the road. Tr. 370.
Clark admitted that she did not see everything that happened because she caught a
glimpse of the swerving in her rearview mirror while turning, completed her turn,
and then turned around to see the motorcycle leave the road. Tr. 377.
{¶29} Jan Gorniak (“Gorniak”), who was the Franklin County Coroner at
the time of the accident, testified next for the State. Gorniak testified that she
conducted the autopsy on McClure. Tr. 383. The cause of death was determined
to be blunt force injuries of the neck and chest due to a motorcycle crash. Tr. 384.
Gorniak also testified that the toxicology test revealed that McClure had a blood
alcohol level of “.26 gram percent.” Tr. 388.
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Case No. 9-12-25
{¶30} The eleventh witness for the State was Williams. Williams was the
primary investigator of this accident. Tr. 402. When Williams arrived on the
scene other officers and the EMT’s were present. Tr. 402. The motorcycle was
lying on its right side and Sayre was sitting on the ground holding a cigarette. Tr.
402. There were several Bud Light cans scattered around the scene and a torn
cardboard box in which the cans were originally located. Tr. 403. Farther to the
east was the body of McClure. Tr. 403. Williams, as discussed earlier, testified
that Sayre had a strong odor of alcohol around him. Tr. 404. In addition he had
red, bloodshot, and glassy eyes, and his speech was slurred. Tr. 404. Sayre’s
dexterity appeared to be impaired and he did not appear to be in severe pain even
though his injuries were severe. Tr. 408. There was no indication on the road that
the motorcycle swerved or struck the road. Tr. 408. Williams testified that based
upon the tire marks at the scene, it appeared that Sayre “failed to negotiate the
curve and drove straight off the south side of the road.” Tr. 409. When
interviewing Sayre at the hospital seven hours later, Williams noted that Sayre’s
speech was much improved. Tr. 409. During the interview, Sayre admitted to
having two and a half beers that evening with the last one being around 9:30 pm.
Tr. 410. Sayre told Williams during the interview at the hospital that a vehicle
came around the curve and was drifting into his lane. Tr. 413. Sayre then stated
that he moved to the right and the tailwind of the truck sent the motorcycle
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Case No. 9-12-25
sideways and he went straight into the ditch. Tr. 413-14. Williams testified that
Sayre’s explanation that was given during the interview as to what happened was
not plausible. Tr. 414. Williams based his conclusion on the physical evidence
showing where Sayre left the road and the lack of yaw marks on the road that
should have been there if the accident occurred the way Sayre described. Tr. 415.
Williams also testified that although Sayre claimed to only have drunk two and a
half beers, he appeared substantially more intoxicated than if he had only drunk
that amount. Tr. 430.
{¶31} On cross-examination, Williams testified that none of the eleven cans
of beer found at the scene appeared to have been consumed. Tr. 444.
Approximately half of the cans were unbroken, but the remainders were damaged
by the impact. Tr. 444. The twelfth can was found in McClure’s pocket. Tr. 445.
Williams also testified that he was not an accident reconstructionist. Tr. 445.
Williams admitted that the accident could have been the cause of the impairment in
motor skills that he observed. Tr. 453.
{¶32} Mark Hiatt (“Hiatt”) also testified for the State. Hiatt was employed
with the Ohio State Highway Patrol Crime Lab. Tr. 478. He tests various bodily
fluids for the presence of alcohol. Tr. 479. Hiatt testified that he conducted the
blood alcohol tests on Sayre’s blood samples. Tr. 482. The results indicated that
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Sayre’s sample contained .064 grams of alcohol per 100 milliliters of whole blood.
Tr. 483.
{¶33} The final witness for the State was Harry Plotnick (“Plotnick”).
Plotnick is a consultant in forensic toxicology and a practicing attorney in the area
of divorce and bankruptcy. Tr. 505. Plotnick testified that he extrapolated the
results of Sayre’s blood alcohol test to determine Sayre’s blood alcohol at the time
of the accident. Tr. 510. Plotnick testified as follows.
A. Based upon generally accepted scientific principles with
respect to the disappearance of alcohol from the bloodstream I
concluded that the blood alcohol level at the time of the this
collision about 9:30, that the blood alcohol level was not less than
a .16 grams per milliliters of blood (sic).
Tr. 510-11. Based upon his calculations, Plotnick testified that most individuals
would be impaired at that level. Tr. 515. He also testified that based upon all the
indicators of intoxication, as testified to by the various witnesses, Sayre would
have been “appreciably impaired by alcohol at the 10:25 time of the accident.” Tr.
516. On cross-examination, Plotnick testified that his calculations are based on
the averages, but could be different for an individual person. Tr. 523. He also
admitted that it was possible that the presence of other drugs could interfere with
the metabolism and excretion of the alcohol. Tr. 525. Plotnick agreed with
defense counsel that if the original result of .064 was incorrect, then his findings
would be incorrect as well. Tr. 525.
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Case No. 9-12-25
{¶34} At the conclusion of the State’s case-in-chief, Sayre presented
numerous witnesses of his own. The first was Williams, who earlier testified for
the State. Williams testified that there were eleven beer cans found at the scene
with five being full and six being empty. Tr. 548-49. He had previously testified
that the empty cans had been damaged upon impact and were not consumed.
Williams testified that there were cans that were extremely close to Sayre and may
have exploded on him. Tr. 550. Williams also testified that there was damage to
the fuel tank of the motorcycle. Tr. 552.
{¶35} Sayre’s second witness was Bascomb McKenzie (“McKenzie”), who
is a friend of Sayre. McKenzie testified that Sayre always speaks with a “gravelly
slur.” Tr. 555. McKenzie testified that he has spent time around Sayre when he is
intoxicated and that Sayre’s speech becomes garbled. Tr. 557. McKenzie spoke
with Sayre around 8:30 or 9:00 pm on the night of the accident. Tr. 556. Based
upon his experience with Sayre, Sayre did not sound intoxicated. Tr. 557.
{¶36} Pamela Gaines (“Gaines”), Sayre’s mother, testified next on his
behalf. Gaines testified that she saw Sayre in the afternoon before the accident.
Tr. 561. At that time she saw no indication that Sayre was intoxicated. Tr. 564.
She testified that while Sayre was in the emergency room, he was very upset and
in a great deal of pain. Tr. 565. The emergency personnel gave him some
injections to try to ease the pain. Tr. 565. Gaines also testified that the second
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Case No. 9-12-25
interview with the police was soon after they gave Sayre the injections before
taking him to surgery. Tr. 566-67.
{¶37} John Galati, Sr. (“J. Galati”), the father of McClure, testified next for
Sayre. He testified that Sayre’s truck had been in his driveway for a month, but
was gone the day of the accident. Tr. 569-70. J. Galati presumed that Sayre had
managed to fix it, but did not see either Sayre or McClure on the day of the
accident. Tr. 571.
{¶38} The fifth witness for Sayre was Edward Yingling (“Yingling”), who
was a criminalist at the Ohio State Highway Patrol Crime Lab. Tr. 576. Yingling
conducted the toxicology test to determine whether Sayre had any drugs in his
system at the time of the accident. Tr. 579. The screen returned a positive result
for marijuana. Tr. 582. However, further testing showed a negative test for
marijuana. Tr. 583.
{¶39} Calvin McGuire (“McGuire”) was the chief toxicologist for the
Franklin County Coroner’s Office. Tr. 590. McGuire testified that he ran the
toxicology tests on McClure. Tr. 591. The testing showed that McClure had a
blood alcohol level of .26 grams. Tr. 593. McGuire then testified that this amount
would be considered a “toxic value”, meaning it could cause serious damage. Tr.
593. McGuire also testified that the amount of glucose would not have affected
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Case No. 9-12-25
the results of the test in this case due to collecting the sample soon after death. Tr.
594.
{¶40} Sayre then testified on his own behalf. He testified that he had
suffered cancer of the throat, neck and face on two different occasions. Tr. 597.
As a result, half of his voice box and a couple of nerves from the bottom of his
tongue were removed. Tr. 597. The last surgery was completed in January of
2007 and he was just learning to get past the speech impediment caused by the
surgery. Tr. 597-98. On the day of the accident, Sayre and McClure left his house
on the motorcycle to look for a car for his daughter. Tr. 604. Then they went back
to his home to eat and he had less than a full beer. Tr. 605. McClure and Sayre
then decided to go to Friar’s house, but stopped for a six pack, some cigarettes and
some gum on the way. Tr. 607. They arrived at Friar’s home as it was starting to
get dark. Tr. 609. As it got later, Sayre asked if they could stay there since
McClure was not dressed for the cold, but Friar refused. Tr. 609-10. Friar then
loaned McClure a coat, a pair of sweat pants, and a pair of gloves. Tr. 610. While
at Friar’s home, Sayre had a beer and a half. Tr. 611. Sayre testified that McClure
had at least four beers while they were there and that Friar was smoking
marijuana. Tr. 612. Sayre denied that he had smoked any of the marijuana. Tr.
612. Sayre also denied that he snorted Vicodin and testified that he is allergic to
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Case No. 9-12-25
Hydrocodone. Tr. 615. Sayre testified that they left Friar’s home around 9:15 and
then went to McClure’s brother’s home.
{¶41} On the way to the brother’s home, Sayre and McClure stopped at a
gas station and purchased cigarettes, a 12 pack of Bud Light and a Mountain Dew.
Tr. 618. Once at the house, Sayre and McClure planned on spending the night, so
Sayre took off his leather coat and chaps. Tr. 620. He had a hoodie on that was
knotted under his chin and he could not get the knot undone. Tr. 620. Sayre then
went upstairs to have McClure untie the knot. Tr. 621. Once the knot was untied,
Sayre went back downstairs. Tr. 621. The stairs were very steep in this home. Tr.
621. Sayre testified that he needed McClure to undo the knot because he could not
see it. Tr. 623. When he left the house, he passed Galati and McClure’s children
who were on their way upstairs. Tr. 624. While downstairs, Sayre heard loud
screaming and cursing coming from Galati and McClure. Tr. 625. Soon after the
fight, McClure and Sayre left. Tr. 625.
{¶42} When they left the house, the 12 pack of beer was in the saddlebag
on the rear of the bike. Tr. 627. Due to the cold weather, they were only traveling
at about 45 miles per hour. Tr. 628. At that time, McClure was upset and was not
holding on or properly positioned behind Sayre. Tr. 628. Neither Sayre nor
McClure was wearing a helmet. Tr. 629. Sayre testified that while they were
riding, McClure’s foot came off the foot peg. Tr. 630. Concerned that McClure
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was no longer stable, Sayre turned on the cruise control and reached back with his
right hand to help her place her foot back on the peg. Tr. 631. Then Sayre saw a
vehicle coming around the curve with its bright lights on, and it appeared to be
drifting into his lane. Tr. 632. Sayre then moved the motorcycle to the right. Tr.
632. Sayre could feel the air from the passing vehicle hit the motorcycle. Tr. 633.
McClure then started falling to the right and Sayre reached back with his right
hand to try and stop her. Tr. 633. Sayre then testified that in a panic, McClure
grabbed at his left elbow to catch herself, which twisted the handle bars to the left.
Tr. 634. The motorcycle then went down into the ditch and McClure fell off the
bike. Tr. 634. Sayre testified that as she went off, her foot caught him in the back
of the head and his head bounced off the gas tank. Tr. 634. With the cruise
control activated, the bike continued to go 45 miles per hour. Tr. 634. As he was
attempting to slow the motorcycle, his right foot caught in the embankment,
causing it to break. Tr. 634. When Sayre fell off the motorcycle, the contents of
the saddlebag fell on him, with some of the cans exploding and spraying him with
the beer. Tr. 638.
{¶43} After the accident, Sayre testified that he did not know where
McClure was and that he was in severe pain. Tr. 639. His leg was bent
underneath him. Tr. 640. Sayre then stated that he found the cell phone, but
couldn’t make a call, so he waved it to try and attract attention from a passing
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Case No. 9-12-25
vehicle. Tr. 640. Once someone saw him, he realized that his cigarettes were
laying on him, and realized that he wanted a cigarette to calm his nerves. Tr. 641.
When the EMT’s arrived, he told them he was fine, but he did not know where the
passenger was. Tr. 642. Sayre testified that he was dizzy from hitting his head
and could not recognize anyone around him. Tr. 642. Sayre also testified that he
could not see anyone because his glasses were lost in the accident. Tr. 643-44.
After being placed in the ambulance, Sayre’s first memory was waking up in the
helicopter. Tr. 644. At that time, Sayre had lost track of time and they were
giving him injections of various medications. Tr. 644-45. The first person,
besides hospital personnel that Sayre remembered seeing was Applegate. Tr. 646.
Sayre testified that he could not understand Applegate and that he was very dizzy.
Tr. 647. Sayre then remembers speaking to Williams just before going into
surgery. Tr. 648. Sayre testified that he remembered answering questions for
Williams, but everything was confusing due to the medications he had been given.
Tr. 650-654. On cross-examination, the State questioned Sayre about his version
of the events and about the inconsistencies between Sayre’s version and those of
the other witnesses. Sayre continued to testify to the same version given at trial.
He admitted that he may not have told Williams about McClure’s actions at the
time he was interviewed in the hospital. Tr. 709.
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Case No. 9-12-25
{¶44} The eighth witness for Sayre was Enver Ozer (“Ozer”). Ozer was the
surgeon who treated Sayre for voice box cancer in 2007. Tr. 657. To treat the
cancer, Ozer removed a significant portion of Sayre’s voice box. Tr. 657. The
cancer reoccurred in 2009 and another surgery in January of 2010. Tr. 658. As a
result, Ozer had to remove a portion of Sayre’s carotid artery and a nerve going to
the tongue, as well as a portion of the face. Tr. 658. This surgery resulted in one
side of Sayre’s tongue being paralyzed. Tr. 659. Ozer testified that the two
surgeries affected Sayre’s ability to speak. Tr. 659. The surgery would affect the
quality of the voice and the ability of the tongue to articulate. Tr. 660.
{¶45} Sherry Patton (“Patton”) also testified on Sayre’s behalf. Patton
teaches the Ohio Safety Court for motorcycles at the Ohio Department of Public
Safety, Delaware Areas Career Center, and A.D. Farrow Company. Tr. 727. They
instruct motorcycle drivers to have passengers keep their feet on the foot pegs so
that they will move with the driver. Tr. 729. If a passenger has their feet off the
pegs, it can throw the motorcycle off balance. Tr. 729. Drivers are also taught to
tell passengers not to make any sudden or abrupt movements. Tr. 730. Patton
testified that if a motorcycle goes into a curve with the driver leaning one way and
the passenger leaning the other, the motorcycle will continue going straight rather
than turning with the curve. Tr. 730. Drivers of motorcycles should never take a
passenger who has been drinking, as they could easily fall off the bike while in
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motion due to loss of balance and equilibrium. Tr. 731. Having the passenger on
a raised rear seat affects the center of gravity of the motorcycle. Tr. 732.
{¶46} Robert Belloto Jr. (“Belloto”) testified next for Sayre. Belloto is a
pharmacist at Good Samaritan Hospital in Dayton. Tr. 735. In addition Belloto
does forensic toxicology consulting in the area of pharmacokinetics. Tr. 736.
Pharmacokinetics is the area that determines the amount of time various
substances will spend in the blood stream and how various factors affect that time.
Tr. 736-37. Belloto testified that he reviewed all of the medical records and test
results along with Plotnick’s report. Tr. 738-39. Belloto testified that the original
number used by Plotnick, the .064, could be off by 20% to 40%. Tr. 747. Belloto
also testified that Plotnick’s use of the median elimination rate could substantially
affect his results. Tr. 748. In addition, the rate of absorption and elimination can
be affected by many factors. Tr. 748.
Q. What can affect the rate of elimination of an individual?
A. Well, it’s not just elimination, it’s absorption, when people
are ill or injured then funny things start to happen. I mean,
pharmacokinetics, that’s why we monitor – that’s why we take
blood levels because although there may be a theory that says
this drug is eliminated at a constant rate above a certain blood
level, that doesn’t always – doesn’t always work out that way.
***
Q. Okay. Are there other factors than what you’ve already
mentioned in terms when you start talking about whether a
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person is a regular drinker or not that affects this rate of
elimination?
A. Well, is what you see is – with alcohol generally you see
something that looks like a triangle. Because people generally
drink at a constant rate and then it’s eliminated at a constant
rate. But it depends if you’re drinking very fast that occurs
change, so it’s not always that simple.
Tr. 748-49. Belloto also testified that the volume of water content, weight, and
frequency of drinking, i.e. heavy drinkers versus social drinkers, affects the rate
the alcohol is metabolized. Tr. 749-50. According to one study, back
extrapolating to determine the amount of alcohol consumed is not reliable because
of the risk of variable metabolism speeds and other errors. Tr. 751. With all the
margins of error added together, the prediction is essentially worthless. Tr. 751.
In addition, the greater the length of time over which the extrapolation is made, the
greater the risk of error becomes, so the results are less reliable. Tr. 752. Belloto
testified that Plotnick’s determination that absorption was complete was unreliable
because it did not consider the factors of how much food had been consumed,
which can reduce the rate of absorption by 50%. Tr. 755. If the rate of absorption
is reduced, then the rate of elimination will be altered because the amount of
alcohol in the blood will continue to change as the alcohol continues to be
absorbed. Tr. 755.
{¶47} Belloto then testified about the effect of injuries on the absorption
and elimination of drugs. Tr. 757. According to Belloto, injuries can completely
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stop absorption and elimination. Tr. 757. Thus, what normally would be absorbed
within one hour could take up to four hours to be fully absorbed. Tr. 757. By
assuming a constant rate of absorption and elimination taken from studies of
healthy people, the results on a person who is injured or not healthy will not
necessarily be accurate. Tr. 757. Belloto testified that in his experience from
practicing at a hospital, real patients do not always follow the theories and the
processes of absorption and elimination do not proceed at a constant rate. Tr. 758.
{¶48} Belloto testified that in Sayre’s case, his injuries were significant
enough to alter his drug kinetics. Tr. 760. Additionally, if samples of blood sit
too long, even if collected in special test tubes, the glucose will ferment and turn
to alcohol in the sample. Tr. 764. Based upon all the information before him and
based upon his training as a pharmacist, chemist, dietician, and pharmacologist in
kinetic pharmacology, Belloto testified that to a reasonable degree of scientific
certainty, one could not tell what the actual blood alcohol level was at the time of
the accident. Tr. 765-66. Belloto testified that the prediction interval was too
large to be able to make a valid determination. Tr. 766.
{¶49} The final witness for Sayre was Todd Schultz (“Schultz”) who is the
owner of Todd’s Auto Sales. Schultz testified that Sayre came to look at a car
from him while on his motorcycle. Tr. 780. When he came in, there was no
indication that he was intoxicated. Tr. 782.
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{¶50} Here, Sayre was charged with operating a vehicle while under the
influence and of aggravated vehicular homicide. Sayre’s OVI charge was made
under R.C. 4511.19(A)(1)(a), which requires the State to prove that Sayre was
operating a motor vehicle while under the influence of alcohol. R.C.
4511.19(A)(1)(a). The statute does not require that he have a specific
concentration of alcohol, such as would be required by R.C. 4511.19(A)(1)(b). If
the jury finds that Sayre was under the influence while operating the vehicle, it
then could determine whether his state of intoxication was one of the causes of
death of McClure. A review of all the evidence in this case indicates that there
was conflicting evidence about whether Sayre was impaired while operating the
motorcycle. However, the jury was able to see the witnesses and weigh the
credibility of the witnesses. There was evidence from which a reasonable juror
could find that Sayre was under the influence of an intoxicating substance at the
time of the accident. Thus, there was no manifest miscarriage of justice which
would weigh heavily against conviction. The verdict is not against the manifest
weight of the evidence and the first assignment of error is overruled.
{¶51} In the fourth and final assignment of error, Sayre claims that his trial
counsel was ineffective. “Reversal of convictions on ineffective assistance
requires the defendant to show ‘first that counsel’s performance was deficient and,
second that the deficient performance prejudiced the defense so as to deprive the
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defendant of a fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶
105, 772 N.E.2d 81. The defendant must show that there was a reasonable
probability that but for counsel’s error, the result of the trial would have been
different. Id. at ¶ 108. In support of his claim, Sayre lists eleven instances of
alleged ineffectiveness of his trial counsel.
{¶52} Sayre first claims that his counsel was ineffective for improperly
withdrawing a portion of a motion in limine concerning the three-hour rule. The
three-hour rule is set forth by statute.
(b) In any criminal prosecution * * * the court may admit
evidence on the concentration of alcohol, drugs of abuse,
controlled substances, metabolites of a controlled substance, or a
combination of them in the defendant’s whole blood, blood
serum or plasma, breath, urine, or other bodily substance at the
time of the alleged violation as shown by chemical analysis of the
substance withdrawn within three hours of the time of the
alleged violation. The three-hour time limit specified in this
division regarding the admission of evidence does not extend or
affect the two-hour time limit specified in division (A) of section
4511.192 of the Revised Code as the maximum period of time
during which a person may consent to a chemical test or tests as
described in that section. The court may admit evidence on the
concentration of alcohol, drugs of abuse, or a combination of
them as described in this division when a person submits to a
blood, breath, urine, or other bodily substance test at the request
of a law enforcement officer under section 4511.191 of the
Revised Code or a blood or urine sample is obtained pursuant to
a search warrant. Only a physician, a registered nurse, an
emergency medical technician-intermediate, an emergency
medical technician-paramedic, or a qualified technician,
chemist, or phlebotomist shall withdraw a blood sample for the
purpose of determining the alcohol, drug, controlled substance,
metabolite of a controlled substance, or combination content of
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the whole blood, blood serum, or blood plasma. This limitation
does not apply to the taking of breath or urine specimens. A
person authorized to withdraw blood under this division may
refuse to withdraw blood under this division, if in that person’s
opinion, the physical welfare of the person would be endangered
by the withdrawing of blood.
R.C. 4511.19(D)(1)(b).
{¶53} The Ohio Supreme Court has held in State v. Mayl that “when results
of blood-alcohol tests are challenged in an aggravated-vehicular-homicide
prosecution that depends upon proof of an R.C. 4511.19(A) violation, the state
must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm. Code
Chapter 3701–53 before the test results are admissible.” State v. Mayl, 106 Ohio
St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶48. In State v. Hassler, 115 Ohio
St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, the Ohio Supreme Court expanded its
holding on what is necessary to admit challenged blood tests. In Hassler, the
defendant was charged with aggravated vehicular homicide for driving under the
influence in violation of R.C. 4511.19(A)(1)(a), and causing the death of another
as a result. The defendant’s blood sample was not taken until seven and a half
hours after the accident. On review the Court held that “a blood sample taken
outside the time frame set out in R.C. 4511.19(D) is admissible to prove that a
person was under the influence of alcohol as proscribed by R.C. 4511.19(A)(1)(a)
in the prosecution for a violation of R.C. 2903.06, provided that the administrative
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requirements of R.C. 4511.19(D) are substantially complied with and expert
testimony is offered.” Id. at ¶2.
{¶54} A review of the record in this case indicates that the blood draw was
not done within the three hour time frame set forth by statute. The parties agree
that the blood draw was done more than seven hours after the accident. Thus, for
the blood sample to be admissible, the state would need to show that there was
substantial compliance with the administrative requirements and offer expert
testimony as to the validity of the sample. This was not done at either the motion
to suppress or at trial when the level was provided to the jury. This court notes
that the testimony of the expert witness was that he presumed the sample was
accurate so that he could get an accurate result. This is not what the Ohio
Supreme Court has required. Thus, the evidence may have been excluded, though
we cannot say without a doubt it would have been because it was not challenged.
{¶55} However, even if counsel should have challenged the admission of
the blood alcohol level and had it been excluded, this does not mean that the
outcome of the case would have been different. Sayre himself admitted on the
stand that he had been drinking, though not heavily. Several witnesses testified
that he smelled of alcohol, had bloodshot and glassy eyes, had impaired
movements, and had slurred speech. Williams even testified that when he
observed Sayre the next day, his movements and speech were improved. Based
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upon this evidence and the fact that Sayre was not charged with a per se violation
of having too much alcohol in his system, the jury could reasonably find that
Sayre was impaired in violation of R.C. 4511.19(A)(1)(a) even without the
evidence of the exact level of the blood alcohol. Thus, the requirement that
counsel’s error would have changed the outcome is not met.
{¶56} Several of Sayre’s alleged errors by counsel were counsel’s failure to
object to various things. Sayre’s second claim of ineffective assistance of counsel
concern counsels failure to object to leading questions. “Leading questions should
not be used on the direct examination of a witness except as may be necessary to
develop the witness’ testimony.” Evid.R. 611. The Ohio Supreme Court has
recognized that the decision not to object to every possible error may be trial
strategy and is not ineffective assistance of counsel. State v. Keene, 81 Ohio St.3d
646, 693 N.E.2d 246 (1998). Although the rules of evidence state that leading
questions should not be used, it does not prohibit them on direct examination
completely. City of Parma v. Koumonduros, 8th Dist. Cuyahoga No. 85315, 2005-
Ohio-3713, ¶18. Even if it was error to allow the leading questions, there was
substantial evidence presented through open-ended questions which would support
the conviction. All the objection would have done would be to cause the State to
rephrase the question. Thus, there is no reason to believe that the objections
would have affected the outcome of the case.
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{¶57} Counsel also failed to object to the opinions of the lay witnesses. As
set forth above, lay witnesses are generally not permitted to offer opinion
testimony. Evid.R. 701. Sayre claims that Williams and Shockey were permitted
to give opinion testimony as to the cause of the accident without objection.
Neither officer was an accident reconstructionist. The admissibility of these
statements was discussed above. The statements were based upon the evidence
they had personally observed. Thus, the statements were permissible. Since there
was no error in the admission of the statements, trial counsel did not err by failing
to object to the statements.
{¶58} Sayre claims that counsel erred by failing to object to the testimony
of witnesses concerning the general conduct of impaired individuals. Sayre claims
that counsel should have objected to the testimony of Wheeler and Williams as to
how intoxicated people act in their experience. However, this testimony was
based upon their observations of seeing numerous people who were intoxicated
and it was based upon their own perceptions. Although it did call for a certain
amount of speculation, there is no evidence in the record to indicate that the
outcome would have been different if the testimony was not permitted. Both
Wheeler and Williams testified that they noted the smell of alcohol about Sayre
and that he appeared intoxicated by his physical features. In addition, Sayre
himself admitted that he had been drinking. Thus, a reasonable juror could
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conclude, even without the speculative testimony, that Sayre was impaired.
Without evidence that the result would have been different, the alleged error is not
ineffective assistance of counsel.
{¶59} Sayre claims that trial counsel erred by failing to object to prejudicial
testimony that should have been excluded. Specifically, Sayre claims counsel
should have objected to Williams’ testimony that his own testimony was
consistent with that of Clark, which should have been left to the jury to determine.
A review of the record shows that Williams testified that Clark’s testimony was
not inconsistent, but was the result of a different viewpoint of the accident. Tr.
470. This testimony came up on redirect examination after Sayre’s counsel
questioned Williams about the difference between his testimony and that of Clark.
This was done to show that Clark’s testimony that it was drizzling did not match
the testimony of the officers that the weather was dry. This was a question of trial
strategy and not one of ineffective assistance of counsel.
{¶60} Sayre claims that trial counsel should have objected to Williams
testimony that it was “ultimately determined [crash reconstruction] were not
needed.” Tr. 470. Sayre claims that this was a hearsay statement because it did
not state who made that determination. Although Sayre is correct that the
statement refers to a determination made by a third party, it is not a hearsay
statement because it is not offered for the truth of the matter asserted, but rather
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was just a statement as to why no accident reconstructionist investigated. Thus,
there is no error in failing to object to the statement.
{¶61} Sayre also claims trial counsel should have objected to Williams’
statement that Sayre was trying to blame the victim. However, a review of the
record indicates that Williams did not make that statement.
Q. You’ve investigated a lot of cases, talked to a lot of
Defendants, correct?
A. Yes.
Q. They lie to protect themselves?
A. Yes.
Q. Now he’s coming into court today or defense counsel’s
coming into court today trying to blame the victim, is that
correct?
A. Yes.
Tr. 476. The statement was made by the State in reply to cross-examination in
which defense counsel alleged that it was McClure’s actions that led to the
accident and trying to explain why this was not relayed to Williams when he
questioned Sayre initially. Placed into context, while the question was clearly
leading, it was not overly prejudicial which would affect the outcome of the case.
Thus, counsel was not ineffective by failing to object.
{¶62} The last bit of prejudicial testimony that Sayre believes should have
been the subject of an objection was a question by the State to Sayre.
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Case No. 9-12-25
Q. You agree in State’s Exhibit 8, and at the scene you never
ever mention [McClure] grabbing you or in any way
contributing to this crash.
A. Sir, I believe I did. It’s not in this statement. I was under a
lot of medication at the time. I’m not sure what exactly I –
statement I made.
Q. It’s not in here right?
A. It wasn’t wrote (sic) in here, sir.
Q. So are you saying you told him, he didn’t write it down, or
you don’t know?
A. Possibly. I really don’t know.
Q. So you’re saying he kept that out purposely?
A. I’m saying that I was already under a lot of medication and
I don’t know what the statement was wrote and what wasn’t
wrote in the statement.
Tr. 709. Placed into context, the offending question cited by Sayre does call for
speculation. However, Sayre did not engage in speculation and merely answered
that he did not know. Counsel could have strategically decided not to object since
the answer did not harm his case. Even if he had objected and no answer had been
given, there is no reason to believe that the outcome of the case would have been
affected. Thus, trial counsel was not ineffective for not objecting to the question.
{¶63} Sayre next claims that counsel erred by failing to object to the State’s
repeated questioning of Sayre by asking him about the testimony of other
witnesses, thus allowing Sayre’s credibility to be damaged. A questioner only
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needs a reasonable basis for asking any question meant to impeach a witness.
Evid.R. 607(B). A review of the record indicates that the State questioned Sayre
about how his testimony was contradicted by that of other witnesses. The State
would then ask Sayre if he could explain the contradictions. This was cross-
examination and thus the State had the right to question Sayre about why his story
was significantly different from that of other witnesses. The State had a
reasonable basis for asking the questions, so it could impeach Sayre in this
manner.
{¶64} Sayre also claims that counsel should have objected to the State’s
commentary about Sayre’s testimony while he was making it and the prosecutor’s
statement that the victim could not come to the courtroom to tell her story because
she was dead. Although these comments may have been inappropriate because
they were not questions, trial counsel may have determined that it was better not to
be constantly objecting to every comment by the State. Thus, we cannot conclude
that the failure to object was not a matter of trial strategy. In addition, these
statements were not of such a nature that their omission would change the result of
the trial. Thus, trial counsel was not ineffective for failing to object to these
statements.
{¶65} Sayre claims that counsel was ineffective for failing to object to
numerous instances of badgering. As discussed above, this could have been trial
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Case No. 9-12-25
strategy and did not affect the outcome of the case. Thus any error would not rise
to the level of ineffective assistance of counsel.
{¶66} Sayre alleges that counsel was ineffective for introducing the blood
alcohol level of McClure. One part of the defense was that it was McClure’s
actions due to her intoxication that caused the accident. To support this claim,
counsel needed to show that McClure was intoxicated. The easiest way to do so
was to have her blood alcohol content disclosed to the jury. The fact that the jury
also heard from an expert that no motorcycle driver should allow a passenger who
is intoxicated to ride was just part of the case that was going to come out when he
claimed she was intoxicated. This was part of the trial strategy and as such is not
ineffective assistance of counsel.
{¶67} Sayre next claims that trial counsel was ineffective for failing to
introduce the reports of Ozer and Belloto. As to Ozer’s report, there is no way to
know what was in the report. Ozer testified that the throat cancer caused part of
the voice box to be removed as well as a nerve to the tongue. Ozer also testified
that such a procedure would affect Sayre’s speech. Without some information as
to the contents of the report, there is no way for this court to determine whether it
would have been useful. Belloto’s report, on the other hand, was discussed by the
trial court outside of the jury’s hearing. It was determined then that there was a
great deal of inadmissible material in it which would require redaction before it
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could be admitted. Belloto himself testified extensively to the contents of the
report. Presumably he covered all of the material which would have been
admissible. Thus, there was no harm in not admitting the reports when the experts
themselves testified.
{¶68} Sayre also claims that trial counsel erred by failing to request a jury
instruction on an Independent Intervening Cause of Death. As discussed above,
the inclusion of an instruction on an Independent Intervening Cause of Death
would not have exonerated Sayre. Although McClure’s actions may have
contributed to her own death, the cause of the injury was the motorcycle accident
which was likely to produce death. If the jury determined that Sayre’s impairment
was one cause of the accident, even if there was another one as well, then it still
could have found him guilty. Thus, the jury instruction in and of itself would not
have changed the outcome of the case.
{¶69} Finally, Sayre claims that trial counsel should have objected to the
prosecutor’s statement in closing argument that his office and everyone who
assisted did a good job. Tr. 816. Although the self-congratulatory statement may
have been inappropriate and could have come across as arrogant if the jury were to
find in favor of the defense, it is not evidence. In addition, the statement was
followed by one in which the State told the jurors to reach a verdict consistent
with the evidence. The trial court then instructed the jury that it is the sole
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determiner of the facts and as to what the evidence means. There is nothing in the
record to indicate in any way that an objection to these statements and an
instruction to disregard them would have affected the verdict in any way. Thus, it
was not ineffective assistance of counsel to not object.
{¶70} Having thoroughly reviewed the record, there is no evidence that trial
counsel’s representation was ineffective. None of the alleged errors of counsel
would have affected the outcome of the case. Thus, the fourth assignment of error
is overruled.
{¶71} Finding no error prejudicial to Defendant, the judgment of the Court
of Common Pleas of Marion Ohio is affirmed.
Judgment Affirmed
PRESTON, P.J., concurs in Judgment Only
SHAW, J., concurs.
/jlr
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