         [Cite as State v. Chapman, 2017-Ohio-8181.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :     APPEAL NOS. C-160397
                                                                    C-160398
        Plaintiff-Appellee,                      :                  C-160399
                                                       TRIAL NOS. C-14TRC-23620A,B,C
  vs.                                            :
                                                          O P I N I O N.
ERIC CHAPMAN,                                    :

    Defendant-Appellant.                         :




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are:               Affirmed in C-160397 and C-160399; Appeal
                                           Dismissed in C-160398

Date of Judgment Entry on Appeal: October 13, 2017




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Law Office of John D. Hill, LLC, John D. Hill, Jr., and Rubenstein & Thurman,
LPA., and Scott A. Rubenstein, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D ETERS , Judge.

       {¶1}    Following a jury trial, defendant-appellant Eric Chapman was

convicted of one count of driving under the influence of alcohol under former R.C.

4511.19(A)(1)(A), one count of refusing to take a chemical test under former R.C.

4511.19(A)(2), and one count of making an improper turn under R.C. 4511.36. As a

preliminary matter, we note that Chapman does not raise any argument related to

the conviction for making an improper turn, so we dismiss the appeal numbered C-

160398. As to the other appeals, we find no merit in Chapman’s two assignments of

error, and we affirm his convictions.


                                I.   Facts and Procedure

       {¶2}    The record shows that in the early morning hours of May 24, 2014,

Trooper Jacob Salamon of the Ohio State Highway Patrol observed a car

approaching him from behind at a high rate of speed. As the car approached, the

driver abruptly slammed on his brakes, causing the front of the car to drastically dip.

It then pulled in behind Trooper Salamon’s cruiser. Trooper Salamon testified that

in his experience, the abruptness of the move was very unusual.

       {¶3}    Trooper Salamon moved over to get behind the car and followed it off

an exit. When the trooper observed the driver make an improper turn, he stopped

the vehicle.   Chapman was the driver and the sole occupant of the car.          Upon

approaching the car, Trooper Salamon detected a strong odor of alcohol coming from

Chapman. He also noticed that Chapman appeared nervous and that his eyes were

bloodshot, watery, and glassy. As the trooper spoke to Chapman, he noticed that




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Chapman’s speech was slightly slurred and that the odor of alcohol was coming from

Chapman’s breath.

       {¶4}   Chapman told Trooper Salamon that he worked as a bartender and

that he was headed home after working a private party. He denied having consumed

any alcohol that night. Trooper Salamon asked Chapman to step out of the car so

that he could conduct field-sobriety tests to determine if Chapman was impaired.

Despite handing the trooper a lawyer’s business card, Chapman agreed to perform

the tests.

       {¶5}   Trooper Salamon conducted a horizontal-gaze-nystagmus test.            He

observed six out of a possible six clues that indicated impairment. He also observed

that Chapman swayed during the test. He conducted the test outside of the range of

his cruiser’s dashboard camera, for safety reasons.

       {¶6}   Before having Chapman perform the other tests, Trooper Salamon

asked Chapman if he had any physical problems that would have prevented

Chapman from performing the tests.          Chapman stated that he had some hip

problems, but nothing that would impair him.

       {¶7}   On the “walk-and-turn” test, Trooper Salomon indicated that he

observed six of eight clues indicative of impairment. Chapman was unable to hold

his position while the trooper instructed him on how to do the test. Chapman was

also unable to touch his heels to his toes, walk a straight line or maintain his balance.

He intermittently raised his arms more than six inches to steady himself.

       {¶8}   During the “one-leg-stand” test, Chapman swayed, raised his arms for

balance, and put his feet down twice. Trooper Salamon observed three out of four




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clues of possible impairment. Both the walk-and-turn test and the one-leg-stand test

were recorded by Trooper Salamon’s dashboard camera and played for the jury.

       {¶9}   Based on his training and experience, Trooper Salamon determined

that Chapman’s ability to operate a motor vehicle was impaired. He placed Chapman

under arrest and transported him to the Norwood Police Department, where

Chapman refused to take a breath test.

       {¶10} The parties stipulated that Chapman had previously been convicted of

an OVI offense. Chapman testified that he had been working as a bartender at a

small private party that evening. The party ended at around 11:30, and he had stayed

and chatted with the hosts for about 30 minutes. On the way home, he was driving

65 to 70 m.p.h., following another car, when he saw Trooper Salamon’s cruiser on

the side of the road. The other car sped past the cruiser, and Chapman moved over

because it looked like the trooper was going to pull out onto the highway, He

continued to go about his business, and he had no idea that Trooper Salamon was

following him until he was pulled over.

       {¶11} Chapman further testified that he suffered from chronic back, neck,

shoulder and hip pain, for which he had been seeing various chiropractors. Because

he did not have insurance, he had been paying the chiropractors out-of-pocket. His

employment, which required him to remain on his feet for long periods of time,

greatly exacerbated the pain. He had worked all day prior to his arrest. As a result,

he was exhausted and in pain from having been on his feet all day.

       {¶12} Chapman denied consuming any alcohol.          He stated that he had

declined to take a breath test based on his distrust of the Norwood Police

Department, which would have conducted the test, and based on past advice from his



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clients who had told him that the tests were inherently unreliable.          The state

impeached his testimony with pictures showing that he had been skydiving a month

prior to his arrest.


                                  II.    Expert Testimony

       {¶13} In his first assignment of error, Chapman contends that the trial court

erred in excluding the testimony of Dr. Thomas Eliopulos, a chiropractor who had

treated him for back, neck and other issues. He argues that the expert testimony was

proper under Evid.R. 702 and that its exclusion resulted in material prejudice. This

assignment of error is not well taken.

       {¶14} Trial courts have broad discretion in determining the admissibility of

expert testimony. Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850

N.E.2d 683, ¶ 9; State v. Edwards, 1st Dist. Hamilton No. C-100200, 2011-Ohio-

1752, ¶ 15. In general, courts should admit expert testimony when it is material and

relevant, pursuant to Evid.R. 702. Edwards at ¶ 15.

       {¶15} Evid.R. 702 permits a witness to testify as an expert when (1) the

witness’s testimony relates to matters beyond the knowledge or experience of a lay

person, (2) the witness has specialized knowledge, skill, experience, training, or

education regarding the subject matter of his or her testimony, and (3) the witness’s

testimony is based on reliable, scientific, technical or specialized information. State

v. Carr, 1st Dist. Hamilton No. C-090109, 2010-Ohio-2764, ¶ 23. Under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469

(1993), the trial court assumes a gatekeeper function and determines whether to

permit the expert to testify by assessing the reliability of the expert’s principles and




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methodology and the relevance of the testimony. Miller v. Bike Athletic Co., 80 Ohio

St.3d 607, 611-612, 687 N.E.2d 735 (1998); Edwards at ¶ 15.

       {¶16} The trial court excluded the testimony because it was not relevant.

Relevance is a threshold question when determining the admissibility of expert

testimony.     State v. Waldock, 2015-Ohio-1079, 33 N.E.3d 505, ¶ 63 (3d Dist.).

Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of an action more probable or less

probable than it would be without the evidence.” Evid.R. 401. “[T]he trial court’s

gatekeeping function also requires it to judge whether an expert’s testimony is

‘relevant to the task at hand’ in that it logically advances a material aspect of the

proposing party’s case.” Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875

N.E.2d 72, ¶ 26, quoting Valentine v. PPG Industries, Inc., 158 Ohio App.3d 615,

2004-Ohio-4521, 821 N.E.2d 580, ¶ 30 (4th Dist.).

       {¶17}     Courts have referred to this aspect of relevancy as “fit.” Daubert, 509

U.S. at 591, 113 S.Ct. 2786, 125 L.Ed.2d 469; Terry at ¶ 26. An expert’s testimony

must “fit” under the facts of the case so that “it will aid the jury in resolving a factual

dispute.” Waldock at ¶ 65, quoting Meadows v. Anchor Longwall & Rebuild, Inc.,

306 Fed.Appx. 781, 790 (3d Cir.2009). The “fit” element encompasses “the proffered

connection between the scientific research or test result to be presented and the

particular disputed factual issues in the case.” Waldock at ¶ 65, quoting Allstate Ins.

Co. v. Hamilton Beach/Proctor Silex, Inc., W.D.Pa. No. 2:06CV1186, 2008 WL

3891259, *5 (Aug. 19, 2008). When an expert’s testimony is logically connected to

the questions at issue and assists the trier of fact to understand the evidence, the

testimony is relevant. Waldock at ¶ 65.



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       {¶18} Chapman sought to have Dr. Eliopulos testify about his treatment of

Chapman and how his medical condition would have affected his performance on the

field-sobriety tests. But the record shows that Dr. Eliopulos had only seen Chapman

about three times and that he had not seen him for almost a year before the date of

the offenses. Therefore, the trial court concluded that he had no knowledge of

Chapman’s condition at the time of the offenses and his testimony was not relevant.

       {¶19} Thus, the expert testimony did not “fit” the facts of the case. It was not

logically connected to the questions at issue, and it would not have aided the jury in

resolving a factual dispute or in understanding the evidence.

       {¶20} The proponent of the expert testimony bears the burden to

demonstrate that the testimony satisfies the Daubert requirements by a

preponderance of the evidence. Watkins v. Affinia Group, 2016-Ohio-2830, 54

N.E.3d 174, ¶ 25 (8th Dist.); Marcus v. Rusk Heating & Cooling, Inc., 12th Dist.

Clermont No. CA2012-03-026, 2013-Ohio-528, ¶ 27; State v. Hatcher, 11th Dist.

Portage Nos. 2012-P-0077 and 2012-P-0078, 2013-Ohio-445, ¶ 24. We cannot say

that trial court’s decision that Chapman failed to meet that burden was so arbitrary,

unreasonable or unconscionable as to connote an abuse of discretion. As a reviewing

court, we cannot substitute our judgment for that of the trial court. See Valentine,

110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, at ¶ 9. Consequently, we

overrule Chapman’s first assignment of error.


                                  III. Manifest Weight

       {¶21} In his second assignment of error, Chapman contends that his

convictions were against the manifest weight of the evidence. After reviewing the




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record, we cannot say that the trier of fact lost its way and created such a manifest

miscarriage of justice that we must reverse Chapman’s convictions and order a new

trial.   Therefore, the convictions were not against the manifest weight of the

evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997);

State v. Cameron, 1st Dist. Hamilton No. C-100708, 2011-Ohio-4484, ¶ 8.

         {¶22} Chapman is simply arguing that his testimony was more credible than

that of the arresting officer, but matters as to the credibility of evidence were for the

trier of fact to decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804

N.E.2d 433, ¶ 116; State v. Bell, 2015-Ohio-1711, 34 N.E.3d 405, ¶ 59 (1st Dist.).

Therefore, we overrule Chapman’s second assignment of error.


                                       IV. Summary

         {¶23} In sum, we overrule both of Chapman’s assignments of error. We

affirm the trial court’s judgments in the appeals numbered C-160397 and C-160399,

and we dismiss the appeal numbered C-160398.

                                                                 Judgment accordingly.
M ILLER , J., concurs separately.
M YERS , P.J., concurs in part and dissents in part.

MILLER, J., concurring separately.

         {¶24} The dissent makes a compelling argument for why Dr. Eliopulos

should have been permitted to testify. Had I been the trial judge, I would have

allowed the testimony. However, our review is limited to whether the trial court

abused its "broad discretion" when it determined that the testimony was not

relevant. I must conclude that it did not.




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       {¶25} The office records indicated that Dr. Eliopulos treated Chapman once a

year in 2011, 2012 and 2013. The last treatment was nearly a year prior to the arrest

and two and a half years prior to the trial. The proffered expert opinion was that the

injury "could very well have impacted [Chapman's] ability to successfully perform

standardized field sobriety tests." Saying something "could very well have impacted"

an event is different than opining that it did impact it. I cannot say that excluding

opinion testimony from a former treating chiropractor was an abuse of discretion

where the trial court concluded that chiropractor was unaware of Chapman's

condition on the night in question and the proffered opinion was wishy-washy to

begin with.



M YERS , P.J., concurring in part and dissenting in part.

       {¶26} I respectfully dissent. Dr. Eliopulos was one of Chapman’s treating

chiropractors. He personally examined and treated Chapman. After he left the

practice, Chapman’s care was transferred to another chiropractor.          While Dr.

Eliopulos had not seen Chapman for nearly a year before Chapman’s arrest, his

testimony was nonetheless relevant. As with any expert, Dr. Eliopolus could base his

opinion on facts perceived by him or admitted into evidence.           Evid. R. 703.

Moveover, there is no question that he was qualified to testify as an expert through

specialized knowledge and training, and that his testimony related to matters beyond

the knowledge of a lay person. Evid. R. 702. The only remaining question is whether

his testimony was based on reliable information. I would find that it was. Even

though Dr. Eliopulos had not seen Chapman for nearly a year, I would find that the

trial court erred in not permitting him to testify about Chapman’s medical condition



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and the effect that condition would have on his performance of the field-sobriety

tests. Any questions about how often Dr. Eliopulos saw Chapman, how long ago, and

the basis for his opinion, go to the weight and sufficiency of the evidence, not its

admissibility.

       {¶27} I would hold that the trial court erred in excluding the testimony of Dr.

Eliopulos and that its exclusion materially prejudiced Chapman. I would reverse the

trial court’s judgment on the OVI charge and remand the cause for a new trial on that

charge. I concur with the majority’s disposition of the other two charges.




Please note:

       The court has recorded its own entry this date.




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