[Cite as State v. Baird, 2015-Ohio-4539.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2014-L-098
        - vs -                                       :

DENNIS I. BAIRD,                                     :

                 Defendant-Appellant.                :


Criminal Appeal from the Willoughby Municipal Court, Case No. 14 TRC 00727.

Judgment: Reversed, sentence vacated, and remanded.


Judson J. Hawkins, City of Eastlake Prosecutor, 37811 Lake Shore Boulevard,
Eastlake, OH 44095 (For Plaintiff-Appellee).

Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH             44123 (For Defendant-
Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Dennis Baird appeals from the judgment of the Willoughby Municipal

Court, entered on a jury verdict, convicting him of driving under the influence of alcohol

in violation of R.C. 4511.19(A)(1)(a), and failing to submit to chemical testing, having

been previously convicted of driving under the influence in the past 20 years, in violation

of R.C. 4511.19(A)(2)(a) and (b). We reverse, vacate the sentence, and remand.
       {¶2}   Shortly after 8:30 p.m. on February 1, 2014, Officer Richard Isabella of the

Eastlake Police Department was parked in his cruiser in a commercial lot off Lakeshore

Boulevard in Eastlake, when he received a message from dispatch. Dispatch told him

an anonymous tipster had called to say that Dennis Baird, possibly drunk, and driving a

green pickup truck, had left a bar in the City of Willoughby, and was headed eastbound

on Lakeshore.     Dispatch further advised that Mr. Baird was driving under license

suspension. Moments later, Officer Isabella saw the green pickup, and recognized Mr.

Baird, with whom the officer had previous encounters. Mr. Baird was not speeding.

Officer Isabella began following. He saw Mr. Baird drift over the white line into an

adjoining bicycle path. He saw Mr. Baird twice cross the center line. After a minute or

two, Officer Isabella stopped Mr. Baird on a side street.

       {¶3}   Officer Isabella approached the truck.        He testified that Mr. Baird had

slurred speech, red, glassy eyes, and smelled of alcohol. On cross examination, the

officer admitted that a smell of alcohol emanating from a person cannot help identify

how much, or when, a person drank. Officer Isabella testified Mr. Baird stated, “I almost

made it home – I think I was set up.” Officer Isabella also testified he asked Mr. Baird to

recite the alphabet twice, and Mr. Baird made mistakes each time. Mr. Baird admitted

to having two drinks, and driving under suspension. Officer Isabella asked Mr. Baird the

time of day, which was actually about 8:40 p.m. Mr. Baird replied it was 1:30 p.m.

       {¶4}   Officer Isabella had Mr. Baird exit the truck. The driver’s door does not

function: Mr. Baird had to leave through the passenger’s door. Officer Isabella admitted

Mr. Baird had no difficulty in doing this, nor in standing when he got out. Officer Isabella

asked Mr. Baird to perform field sobriety tests, to which Mr. Baird replied he could not,




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due to medical issues. Mr. Baird was badly beaten by his father when young, and

suffered a fractured skull. He has a problem with his balance, due to damage to his

inner ear. He takes several medications, including a muscle relaxer, and blood thinner.

       {¶5}   Nevertheless, Officer Isabella administered the horizontal gaze nystagmus

test, which Mr. Baird failed completely.

       {¶6}   There is no dash cam video of this encounter, since the camera in Officer

Isabella’s cruiser was disabled.

       {¶7}   Mr. Baird was arrested, and taken to the police station for booking. Over

defense objection, the CD of the booking was entered into evidence at trial.          The

objection stemmed from the quality of the CD. There are numerous glitches; frequently,

the audio and visual do not match at all.

       {¶8}   Mr. Baird refused to take a breathalyzer test. He was asked twice again to

recite the alphabet. Each time, he ran through it very quickly, and seemed to miss the

letter “w.” The second time, he added it immediately after “z.” Generally, he sat quietly

on a bench. Several times, however, he became agitated, and gesticulated, raising his

voice. Twice he clapped, evidently when accusing the officers of persecuting a severely

disabled man such as himself. When asked if he would like to try the field sobriety

tests, he replied he could not do them sober. He stated he had three drinks over

several hours. He was non-cooperative when his mug shots were taken, sticking out

his tongue. Interestingly, his eyes do not appear at all red in the mug shots. He

answered most questions quickly and without difficulty, and participated intelligently, if

somewhat vigorously, in a discussion of the effect of two prior OVI convictions he had

sustained.




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       {¶9}   Mr. Baird’s gait is somewhat shambling. His voice is very gruff, and his

speech pattern sometimes moves from fast to slow without warning or apparent reason.

At the trial in this matter, his mother Judy Baird, with whom he lives, testified. She

stated this was his normal manner of speech. She also testified that on the day of

arrest, she returned home at 4:00 p.m., and left again at 7:30 p.m., an hour before the

arrest, and that Mr. Baird drank nothing during that time.

       {¶10} Mr. Baird was charged with the two aforementioned violations. April 17,

2014, he filed a motion to suppress, which was denied by the trial court after hearing.

Jury trial was held August 1, 2014. Defense counsel offered to stipulate that Mr. Baird

had a prior OVI conviction. The state refused the stipulation, and the judgments against

him for two prior OVI convictions were entered into evidence.

       {¶11} The jury found Mr. Baird guilty of both charges. The trial court merged the

convictions for sentencing purposes, sentencing Mr. Baird to 365 days in jail, 215 being

suspended, credit for time served, and two years probation. His driver’s license was

suspended for five years.

       {¶12} This appeal timely ensued, Mr. Baird assigning five errors:

       {¶13} “[1.] Appellant’s right to be free from unreasonable searches and seizures

under the Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the

Ohio Constitution was violated when the police conducted an investigatory stop based

on an anonymous tip without first corroborating the allegations of criminal conduct.

       {¶14} “[2.] The trial court abused its discretion to the prejudice of the appellant

by admitting into evidence the appellant’s booking video, as the recording’s probative

value is substantially outweighed by the danger of unfair prejudice.




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       {¶15} “[3.] The trial court erred to the prejudice of the appellant in admitting

evidence of the appellant’s two prior convictions, in that the evidence’[s] probative value

was outweighed by unfair prejudice.

       {¶16} “[4.] The verdict of guilty is against the manifest weight of the evidence.

       {¶17} “[5.] The trial court erred to the prejudice of the appellant in denying the

motion for dismissal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure, in

that the evidence presented was insufficient as a matter of law.”

       {¶18} We commence with assignment of error three, finding it dispositive of this

appeal.

       {¶19} In October 2008, Mr. Baird pled guilty to two counts of OVI, in separate

cases, in the trial court. In this case, he refused a breathalyzer test, and was charged

not merely with OVI, but with violating R.C. 4511.19(A)(2)(a) and (b), which provides, in

pertinent part:

       {¶20} “(2) No person who, within twenty years of the conduct described in

division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a

violation of this division, a violation of division (A)(1) or (B) of this section, or any other

equivalent offense shall do both of the following:

       {¶21} “(a) Operate any vehicle * * * within this state while under the influence of

alcohol, a drug of abuse, or a combination of them;

       {¶22} “(b) Subsequent to being arrested for operating the vehicle * * * as

described in division (A)(2)(a) of this section, being asked by a law enforcement officer

to submit to a chemical test or tests under section 4511.191 of the Revised Code, and

being advised by the officer in accordance with section 4511.192 of the Revised Code




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of the consequences of the person’s refusal or submission to the test or tests, refuse to

submit to the test or tests.”

       {¶23} Defense counsel offered to stipulate that Mr. Baird had a prior OVI

conviction.   The state refused the offer, and both judgment entries of his prior

convictions came into evidence.      Mr. Baird argued then, as now, that this violated

Evid.R. 403(A) which provides, in pertinent part: “Although relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger of unfair

prejudice * * *.” Mr. Baird asserts the evidence he had two prior OVI convictions was

not necessary for the state to prove its case, since he was willing to stipulate to one. He

argues it was prejudicial, as it tended to show not merely that he is a repeat offender,

but an habitual, chronic offender. We agree.

       {¶24} We review a trial court’s evidentiary rulings for abuse of discretion.

Musson v. Musson, 11th Dist. Trumbull No. 2013-T-0113, 2014-Ohio-5381, ¶34.

Regarding this standard, we recall the term “abuse of discretion” is one of art, connoting

judgment exercised by a court which neither comports with reason, nor the record.

State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be

found when the trial court “applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176

Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)

       {¶25} “With regard to the risk of prejudice [under Evid.R. 403(A)], it must be

shown that the prejudicial effect was unfair because it might have provided the jury with

an improper basis for rendering its decision.” State v. Comstock, 11th Dist. Ashtabula

No. 96-A-0058, 1997 Ohio App. LEXIS 3670, *30 (Aug. 15, 1997).




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       {¶26} We find this assignment of error is controlled by Old Chief v. United

States, 519 U.S. 172 (1997). In that case, Old Chief was willing to stipulate he had

previously been convicted of a crime requiring imprisonment for more than one year,

which was an element of one of the crimes with which he was newly charged. Id. at

174. The United States refused the stipulation, and the district court agreed, allowing in

the judgment entry regarding the prior conviction. Id. at 177. The Ninth Circuit Court of

Appeals affirmed. Id. The U.S. Supreme Court granted Old Chief’s petition for a writ of

certiorari, and reversed. Id. at 178. Analyzing the case under Fed.R.Evid. 403, the

court concluded that when the sole issue pertaining to a prior conviction is a defendant’s

legal status – i.e., whether a defendant is subject to prosecution and conviction for the

presently charged crime due to a prior conviction – then, the government is required to

accept a defendant’s stipulation regarding the prior conviction, to avoid unfair prejudice.

Old Chief at 190-192. We have previously applied Old Chief in interpreting Ohio Evid.R.

403. See, e.g., State v. Hatfield, 11th Dist. Ashtabula No. 2006-A-0033, 2007-Ohio-

7130, ¶142-148.

       {¶27} Pursuant to Old Chief, the admission into evidence of Mr. Baird’s prior OVI

conviction, when he was willing to stipulate he had a prior conviction, was unfairly

prejudicial, as it gave the jury an improper basis for the instant verdict.

       {¶28} The third assignment of error has merit.            We decline to reach the

remaining assignments of error, finding them moot. App.R. 12(A)(1)(c).




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       {¶29} The judgment of the Willoughby Municipal Court is reversed, Mr. Baird’s

sentence is vacated, and this matter is remanded for further proceedings consistent with

this opinion.




THOMAS R. WRIGHT, J., concurs,

CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.


                                _____________________


CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.

       {¶30} Because I disagree with the majority’s analysis and disposition with

respect to the third assignment of error, which is the only assigned error the majority

addresses in its opinion, I respectfully dissent.

       {¶31} I agree with the majority that the trial court erred by admitting evidence of

appellant's prior OVI convictions, on the basis that admission of said evidence violated

Evid.R. 403(A) and Old Chief, supra. However, even an Old Chief violation does not

automatically warrant reversal of an otherwise valid conviction where the error

committed by the trial court is otherwise harmless beyond a reasonable doubt. See

State v. Riffle, 5th Dist. Muskingum No. 2007-0013, 2007-Ohio-5299, ¶32-35, citing Old

Chief. In Old Chief, the United States Supreme Court did not remand the case to the

trial court for a new trial; rather the Court remanded the case to the Ninth Circuit Court

of Appeals. Id. at 192. In a footnote, the United States Supreme Court stated, “[i]n

remanding, we imply no opinion on the possibility of harmless error, an issue not

passed upon below.” Id. at n. 11. On remand, the Ninth Circuit held: “[t]he judgment of



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this court has been reversed * * *, and this case is remanded to the district court for

further proceedings in light of the Supreme Court’s opinion in Old Chief[, supra.] The

district court may consider whether any error found by the Supreme Court was

harmless.” 121 F.3d 448.

      {¶32} Error is harmless unless the defendant’s substantial rights are affected.

Crim.R. 52(A); State v. Hicks, 6th Dist. Ottawa No. L-83-074, 1991 Ohio App. LEXIS

3856, *13 (Aug. 16, 1991).

      {¶33} Ohio courts have discussed two standards for harmless error in criminal

cases, depending on whether the rights affected by the error are constitutional or non-

constitutional rights. For non-constitutional errors in the admission of evidence, the test

is whether “there is substantial other evidence to support the guilty verdict.” State v.

Webb, 70 Ohio St.3d 325, 335 (1994).

      {¶34} The Ohio test * * * for determining whether the admission of

      inflammatory and otherwise erroneous evidence is harmless non-

      constitutional error requires the reviewing court to look at the whole

      record, leaving out the disputed evidence, and then to decide whether

      there is other substantial evidence to support the guilty verdict. If there is

      substantial evidence, the conviction should be affirmed, but if there is not

      other substantial evidence, then the error is not harmless and a reversal is

      mandated. State v. Davis, 44 Ohio App.2d 335, 347 (8th Dist.1975).

      {¶35} In contrast, “[w]here constitutional error in the admission of evidence is

extant, such error is harmless beyond a reasonable doubt if the remaining evidence,




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standing alone, constitutes overwhelming proof of the defendant’s guilt.”        State v.

Williams 6 Ohio St.3d 281 (1983), paragraph six of the syllabus.

       {¶36} Here, there was only one error committed by the court -- the admission of

appellant's prior OVI convictions. In addition, the state presented ample evidence that

appellant was under the influence before he was booked. Officer Isabella testified that

appellant: (1) crossed the center line twice; (2) had slurred speech, glassy eyes, and

smelled of alcohol; (3) admitted he had had two drinks that evening; (4) said it was 1:30

p.m. when in fact it was 8:40 p.m., in responding to the officer’s question asking him the

time; (5) failed the one field sobriety test he agreed to take, the horizontal gaze

nystagmus test; and (6) was unable to correctly recite the alphabet twice. A review of

the record reveals that, after leaving out the disputed evidence, the remaining evidence

presented by the state satisfied both standards for harmless error. I would therefore

affirm the trial court’s judgment.

       {¶37} For the foregoing reasons, I respectfully dissent.




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