[Cite as State v. Randolph, 2019-Ohio-307.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2018-CA-15
                                                    :
 v.                                                 :   Trial Court Case Nos. 2018-CRB-62 &
                                                    :                      2018-TRD-120
 BRAD RANDOLPH                                      :
                                                    :   (Criminal Appeal from
         Defendant-Appellant                        :    Municipal Court)
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 1st day of February, 2019.

                                               ...........

ROGER A. STEFFAN, Atty. Reg. No. 0086330, 205 South Main Street, Urbana, Ohio
43078
      Attorney for Plaintiff-Appellee

JAMES S. SWEENEY, Atty. Reg. No. 0086402, 97 South Liberty Street, Powell, Ohio
43065
      Attorney for Defendant-Appellant

                                              .............
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FROELICH, J.

       {¶ 1} After a vehicle collision, Brad Randolph was charged with two counts of

driving under suspension, in violation of R.C. 4510.11(A), and one count of failure to stop

at a stop sign, in violation of R.C. 4511.43(A). He was also charged with obstructing

official business, in violation of R.C. 2921.31(A), based on his statements to a law

enforcement officer that his fiancée, not he, was the driver of the vehicle. A jury found

Randolph guilty of all charges, and the trial court sentenced him accordingly.1

       {¶ 2} Randolph appeals from his convictions, claiming that the trial court erred in

allowing opinion testimony by a firefighter/emergency medical technician (EMT). For the

following reasons, the trial court’s judgment will be affirmed.

                                    I. Evidence at Trial

       {¶ 3} On Christmas 2017, Cherie Wagner was driving her Kia Sedona minivan

northeast on State Route 4 when she observed a small white car stopped at a stop sign

ahead and to her left at the intersection with State Route 54; State Route 4 did not have

stop sign at that intersection. After oncoming (southwest) traffic on State Route 4 passed

the intersection, the car drove into the intersection in front of Wagner. Wagner swerved

and slammed on her brakes, but collided with the passenger side of the car. Wagner

observed a man in the driver’s seat and a female passenger.

       {¶ 4} After checking on her children in her van, Wagner checked on the occupants


1 For obstructing official business, the trial court imposed 60 days in jail, of which 55 days
were suspended, 24 months of community control, a $300 fine, and court costs;
Randolph’s driving privileges were suspended for one year. For both driving under
suspension counts, the trial court imposed a $125 fine and a one-year driver’s license
suspension. For the stop sign violation, the trial court imposed a $35 fine. Randolph
was ordered to pay restitution of $1,000; this amount was included in the “total all cases”
stated on the judgment entry for obstructing official business.
                                                                                          -3-


of the car. Wagner heard a woman crying. Wagner saw that the car’s driver’s door was

open, and the woman was sitting sideways in the driver’s seat with her feet out the door,

holding her head. Wagner returned to her vehicle to be with her children. Wagner

initially received some insurance information from a deputy who came to the scene, but

it was “bond insurance” related to the female occupant of the car, and the insurance

company told Wagner later that the woman was not covered if she were not the driver.

Wagner stated that Randolph did not have insurance, and her insurance therefore paid

for repairs, minus her deductible; Wagner stated that she would not have had to pay her

deductible if the woman, who had insurance, had been the driver.

       {¶ 5} Stephen Pollock observed the collision as he was traveling northbound on

State Route 54 and approaching the stop sign at State Route 4. Pollock stated that the

car involved in the collision was facing him, traveling southbound on State Route 54.

Pollock saw the car pull out in front of the minivan and the minivan swerve and hit the car

on the passenger’s side. The car passed Pollock’s vehicle after the collision, before

stopping. As it went past, Pollock saw a woman in the passenger seat, crying and

holding her head; a man was driving. Pollock got out and checked on the minivan’s

passengers. When he went to the car, EMTs were already there.

       {¶ 6} Captain Andrew Goings, a firefighter/EMT with the Pleasant Township Fire

Department for ten years, was travelling in his personal vehicle on State Route 4,

approximately four miles south of the collision, when he was notified by radio of the traffic

incident. Goings went to the scene and noticed two vehicles pulled over on State Route

54, southeast of the intersection with State Route 4; the vehicles appeared to have been

involved in a “T-bone” accident.
                                                                                        -4-


      {¶ 7} Goings spoke with Wagner, who reported no injuries. Goings then went to

the car; he observed Randolph sitting in the driver’s seat with his feet on the pavement,

and a woman, later identified as Christin McKenzie, seated in the back seat on the driver’s

side. Randolph reported no injuries, but McKenzie was visibly shaken, complained of

head and neck pain, and had a laceration to the back of her head on the right side.

Goings noticed glass fragments on the right side of her body. (Goings indicated that the

front passenger window was broken, but the driver’s side windows were intact.)

      {¶ 8} When asked if he came to any conclusions about the injuries sustained by

the occupants of the car, Goings testified, over defense counsel’s objection, that he

“stated to the female that you were, you know, the passenger of the vehicle, given that it

is because she did have the head injury on the right side.” (Tr. at 41.)    Goings further

testified that McKenzie “was the only one that had any type of injuries that matched up to

her being the passenger in the vehicle. I would’ve seen those same injuries in another

person if that person would’ve been in the passenger’s seat versus the driver’s seat.”

(Tr. at 42-43.) When the medic unit arrived, Goings told the crew about the injuries that

McKenzie had sustained and that he believed she had been the passenger when the

impact had occurred. McKenzie was placed on a stretcher and taken by ambulance to

the hospital. Randolph rode to the hospital with McKenzie.

      {¶ 9} Deputy Erich Hopkins of the Champaign County Sheriff’s Office, whose

duties include accident reconstruction, was called to the scene and was the last deputy

to arrive. Hopkins spoke with Goings and learned that both Randolph and McKenzie

were in the car and that Randolph was claiming to be the passenger, but that McKenzie’s

injuries were consistent with her being the passenger. Hopkins then spoke with another
                                                                                      -5-


deputy, who was taking witness statements from Wagner and Pollock.

       {¶ 10} Hopkins spoke with Randolph; Randolph told Hopkins that he was the

passenger and informed the officer that his driver’s license was under suspension.

Hopkins informed Randolph of what Goings had said and advised Randolph that he would

be charged with obstruction if Hopkins learned that Randolph was lying. Randolph

maintained that he was the passenger, not the driver. Hopkins created a traffic crash

report, which was admitted at trial.

       {¶ 11} The defense offered the testimony of Machele Rupert (Randolph’s mother)

and Mathew Severt (Randolph’s close friend).      Their testimony established that, on

Christmas Day 2017, McKenzie drove herself, Severt, and Randolph to Rupert’s home in

Mechanicsburg. Randolph wanted to borrow a gas can from Rupert to take to someone

whose car was out of gas.        Severt stayed at Rupert’s home when Randolph and

McKenzie left with the gas can; McKenzie was driving. Within an hour, Rupert received

a phone call from Randolph indicating that Randolph and McKenzie had been in an

automobile accident.     Severt believed McKenzie must have been driving, because

McKenzie always drove and Randolph did not drive. Severt and Rupert went to the

accident scene, where they observed that McKenzie was injured, and then went to the

hospital. At the hospital, Rupert noticed that Randolph’s right hand was injured.

       {¶ 12} Randolph testified on his own behalf. He indicated that McKenzie was

driving when they left his mother’s home and when the collision occurred. Randolph

stated that the passenger-side doors would not open after the accident, so he exited the

car through the driver’s door. McKenzie then sat in the driver’s-side back seat, and he

sat in the driver’s seat. Randolph stated that he noticed that he was injured as he was
                                                                                           -6-


going to the hospital with McKenzie. He indicated that his right hand and forearm started

to throb and his hand was swollen; he also noticed little pieces of glass in cuts on his right

hand. Randolph testified that he had a knot on the left side of his head from his head’s

colliding with McKenzie’s head.

       {¶ 13} McKenzie also testified on Randolph’s behalf, stating that she was driving

when the accident occurred. She indicated that she had been injured when her head

bounced off the driver’s side window and then hit Randolph’s head; glass flew in her head

when the passenger window broke.

       {¶ 14} After deliberations, the jury found Randolph guilty of both counts of driving

under suspension, of failure to stop at a stop sign, and of obstructing official business.

Randolph appeals from his convictions, raising one assignment of error.

                                  II. Opinion Testimony

       {¶ 15} In his sole assignment of error, Randolph claims that the trial court “abused

its discretion when it permitted Firefighter Goings to render opinion testimony.”

       {¶ 16} Evid.R. 701 governs opinion testimony by lay witnesses and provides that

such testimony “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.”        Under Evid.R. 701, lay opinion

testimony must be “rationally based on the perception of the witness.             Perception

connotes sense: visual, auditory, olfactory, etc. Thus, opinion testimony under Evid.R.

701 must be based on firsthand, sensory based knowledge.” Sec. Natl. Bank & Trust

Co. v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 17.

       {¶ 17} “The line between expert testimony under Evid.R. 702 and lay opinion
                                                                                          -7-

testimony under Evid.R. 701 is not always easy to draw.” Hetzer-Young v. Elano Corp.,

2016-Ohio-3356, 66 N.E.3d 234, ¶ 43 (2d Dist.), citing Reynolds at ¶ 19. However, as

recognized by the Supreme Court of Ohio, courts have permitted lay witnesses to express

their opinions in areas in which it ordinarily would be expected that an expert must be

qualified under Evid.R. 702. Id., citing State v. McKee, 91 Ohio St.3d 292, 296, 744

N.E.2d 737 (2001); see also State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 107 (2d

Dist.). “Although these cases are of a technical nature in that they allow lay opinion

testimony on a subject outside the realm of common knowledge, they still fall within the

ambit of the rule’s requirement that a lay witness’s opinion be rationally based on firsthand

observations and helpful in determining a fact in issue. These cases are not based on

specialized knowledge within the scope of Evid.R. 702, but rather are based upon a

layperson’s personal knowledge and experience.” (Footnote omitted.) McKee at 296-

297; see also Jones at ¶ 111 (police detective could testify about typical behavior of

children in child abuse cases based on his training and experience in such cases); Hetzer-

Young at ¶ 46 (witnesses could testify about power level of engine and whether plane

was landing prior to crash); State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-

5463, ¶ 77.

       {¶ 18} The trial court has “considerable discretion in admitting the opinion

testimony of lay witnesses.” (Citation omitted.) State v. Marshall, 191 Ohio App.3d 444,

2010-Ohio-5160, 946 N.E.2d 762, ¶ 43 (2d Dist.). An abuse of discretion implies that

the trial court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 19} In this case, Captain Goings had been an EMT/firefighter with the Pleasant
                                                                                           -8-


Township Fire Department for ten years, and his duties included responding to

automobile accidents. On cross-examination, Goings indicated that he worked in law

enforcement, as well, and had been called to “hundreds of accidents,” although he could

not say how many of those involved T-bone collisions. Goings observed McKenzie’s

physical condition and injuries, as well as the condition of her car, after the collision.

Goings’s testimony that McKenzie’s injuries were consistent with her being the passenger

was rationally based on his first-hand observations and his personal experience

responding to numerous automobile accidents as an EMT/firefighter and law enforcement

officer.   Further, Goings’s testimony aided the trier of fact in determining whether

Randolph, rather than McKenzie, was the driver of the vehicle, i.e., the disputed issue at

trial. Accordingly, the trial court did not abuse its discretion in allowing Goings to testify

that McKenzie’s injuries were consistent with her being the passenger, not the driver.

       {¶ 20} Randolph’s assignment of error is overruled.

                                      III. Conclusion

       {¶ 21} The trial court’s judgment will be affirmed.

                                      .............



WELBAUM, P.J. and TUCKER, J., concur.


Copies sent to:

Roger A. Steffan
James S. Sweeney
Hon. Gil S. Weithman
