[Cite as State v. Daly, 2012-Ohio-4151.]

                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                             :     APPEAL NO. C-110602
                                                 TRIAL NO. C-11TRC-14216(A)
        Plaintiff-Appellee,                :
                                                     O P I N I O N.
  vs.                                      :

ANTHONY V. DALY,                           :

     Defendant-Appellant.                  :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 14, 2012



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

Matthew T. Ernst, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
D INKELACKER , Judge.

        {¶1}    In one assignment of error, defendant-appellant Anthony Daly claims

that his conviction for operating a motor vehicle while under the influence of alcohol

was improper. We disagree.

        {¶2}    Daly was involved in a single-car accident.        By the time sheriff’s

deputies arrived at the scene, Daly had been placed in an ambulance.                  The

investigating deputy noticed a strong odor of an alcoholic beverage coming from

Daly. He noticed that Daly’s speech was slurred, and that Daly’s eyes were glassy and

bloodshot. At the hospital, Daly acknowledged that he had been driving, but refused

to submit to any testing that would determine his blood-alcohol content. Daly was

charged with violating R.C. 4511.19(A)(1)(a), which states that “[n]o person shall

operate any vehicle * * * if, at the time of the operation * * * [t]he person is under the

influence of alcohol, a drug of abuse, or a combination of them.” Additionally, he

was charged under R.C. 4511.19(A)(2)(b), which prohibits individuals, after being

arrested for operating a vehicle while under the influence (“OVI”), from refusing to

submit to a chemical blood-alcohol test if they have been convicted of an OVI offense

within the previous 20 years. Daly was also cited for traffic offenses, which are not

the subject of this appeal.

        {¶3}    Daly entered a plea of not guilty and the matter proceeded to a bench

trial. Daly stipulated that he had previously been convicted of an OVI offense in

1998, within the 20-year “look-back” period of R.C. 4511.19(A)(2)(b). After hearing

from two deputies, the trial court found Daly guilty of violating R.C. 4511.19(A)(1)(a),

but not guilty of violating R.C. 4511.19(A)(2)(b). In so finding, the trial court said

that:


                                            2
       [b]ased on the totality of circumstances, including but not limited to,

       the strong odor of alcohol coming from inside the vehicle and from the

       defendant’s person, the slurred speech, * * * Deputy Losekamp said he

       was very difficult, hard to understand, circumstances surrounding the

       accident, watery, bloodshot eyes * * * taking into account the refusal to

       submit to the blood test, I’m gonna find you guilty.

       {¶4}     After some additional brief comments, the trial court added “taking

into account his prior 1998 OVI conviction umm - - there’s going to be a guilty

finding * * * on the A(1)(a).”

       {¶5}     On appeal, Daly argues that his conviction was improper because the

trial court expressly relied on his prior OVI conviction, which was not an element of

the offense under R.C. 4511.19(A)(1)(a). When reviewing a bench trial, the appellate

court presumes that the trial court considered “only the relevant, material, and

competent evidence in arriving at its judgment unless it affirmatively appears to the

contrary.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ___ N.E.2d ___, ¶

195, quoting State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).

       {¶6}     In this case, the trial court had found Daly guilty prior to referencing

his 1998 OVI conviction. Thus, the trial court had reached its decision at that point,

and it had listed the factual determinations that supported its decision. The finding

of guilt was based on several relevant factors, outlined above, all of which were

competent factors in determining his guilt. The fact that, after finding Daly guilty,

the trial court mentioned the prior conviction—a conviction to which Daly had

stipulated and which was an element of the charged R.C. 4511.19(A)(2)(b) offense—

does not change this result. In light of the deference that this court must give the


                                           3
determination of the trial court, Daly’s conviction under R.C. 4511.19(A)(1)(a) cannot

be reversed due to a misstatement by the trial court, which was made after guilt had

been determined. Therefore, we overrule Daly’s sole assignment of error.

       {¶7}     Having considered and overruled Daly’s sole assignment of error, we

affirm the judgment of the trial court.

                                                                      Judgment affirmed.

SUNDERMANN, P.J., concurs.
CUNNINGHAM, J., dissents.

CUNNINGHAM, J., dissenting.

       {¶8}     When this court reviews a bench trial in a criminal case, we presume that

the “court considered only the relevant, material, and competent evidence in arriving at

its judgment unless it affirmatively appears to the contrary.” State v. White, 15 Ohio

St.2d 146, 151, 239 N.E.2d 65 (1968). This presumption is overcome, however, when

the trial court affirmatively states that it relied on inadmissible evidence. See Moore v.

United States, 429 U.S. 20, 22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976). Compare State v.

Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987) (holding that absent an indication

that the three-judge panel was influenced by or considered the victim impact evidence in

arriving at its sentencing decision, the admission of the victim impact evidence at the

mitigation hearing did not constitute prejudicial error.)

       {¶9}     Daly’s prior OVI conviction was not admissible under the Rules of

Evidence to establish his propensity to violate R.C. 4511.19(A)(1)(a) in March 2011, and

the use of the evidence for that purpose conflicts with the policies underlying the right to

a fair trial under the Due-Process Clause. See Evid.R. 404; Brinegar v. United States,

338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Zackowitz, 254 N.Y.

192, 197, 172 N.E. 466 (1930).

                                             4
       {¶10}    Thus, the proper inquiry is whether the record affirmatively shows that

the trial court relied on the inadmissible evidence as substantive evidence of guilt. The

majority’s refusal to find error based on the timing of the court’s declaration ignores the

reality that the trial court made only one determination of guilt.

       {¶11}    Here, the trial court stated that it had relied on Daly’s prior conviction as

substantive evidence of the R.C. 4511.19(A)(1)(a) offense, and it did not correct itself

after defense counsel objected and brought the error to the trial court’s attention.

Therefore, the error affirmatively appears on the record.

       {¶12}    The state argues that the trial court’s reliance on the prior conviction in

determining Daly’s guilt was harmless in light of the other evidence to support the

conviction. This court must ignore errors that do not affect the substantial rights of the

defendant. Crim.R. 52(A). The Ohio Supreme Court has repeatedly held that “[e]rror in

the admission of evidence is harmless if there is no reasonable possibility that the

evidence may have contributed to the accused’s conviction. In order to hold the error

harmless, the court must be able to declare a belief that the error was harmless beyond a

reasonable doubt.” State v. Bayless, 48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976),

paragraph seven of the syllabus, vacated in part on other grounds, 438 U.S. 911, 98

S.Ct. 3135, 57 L.Ed.2d 1155 (1978).

       {¶13}    I am not persuaded that Daly would have been convicted absent the

inadmissible evidence. See State v. Allen, 29 Ohio St.3d 53, 55, 506 N.E.2d 199 (1987).

       {¶14}    The inference of conforming conduct was particularly strong because the

prior conviction involved the exact same crime. And, as demonstrated below, the

strength of each one of the remaining factors that the trial court relied upon in

determining guilt was diluted in some way at trial, leading me to conclude that the


                                             5
evidence of the prior conviction affected the court’s weighing of the evidence on these

other factors in a way prejudicial to Daly.

       {¶15}    According to Deputy Losekamp, who responded to the scene, Daly’s

accident occurred on a dark, slippery, and curvy stretch of roadway that had been the

site of previous accidents. Further, Losekamp conceded that the accident could have

caused Daly’s slurred speech and glassy, watery, and bloodshot eyes because Daly had

suffered a serious head injury, and a large quantity of talcum powder had been

disbursed into the car when the front and side airbags had deployed.

       {¶16}    Further, while Losekamp and Deputy Butler, who interviewed Daly at

the hospital, both testified that that they had smelled alcohol on Daly’s breath, the

emergency room medical record did not contain any reference to alcohol in Daly’s

system or on his breath.       And a notation in these records states that Daly was

“conversing and answering questions without difficulty.”

       {¶17}    Additionally, the trial court’s reliance on Daly’s refusal to take a chemical

blood-alcohol test as a factor supporting a finding of guilt was undermined by the court’s

determination that Daly had not violated R.C. 4511.19(A)(2)(b). This statute prohibits

individuals, after being arrested for operating a vehicle while under the influence

(“OVI”), from refusing to submit to a chemical blood-alcohol test if they have been

convicted of an OVI offense within the previous 20 years. Daly stipulated to his prior

OVI offense for purposes of the R.C. 4511.19(A)(2)(b) offense.

       {¶18}    Finally, the trial court stated that it was a “tough call” when he overruled

Daly’s motion for an acquittal.

       {¶19}    Because, on this record, there is a reasonable possibility that the prior-

OVI evidence may have contributed to Daly’s conviction, I cannot say that the trial


                                              6
court’s error was harmless beyond a reasonable doubt. See Allen, 29 Ohio St.3d at 55,

506 N.E.2d 199, citing Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035, paragraph seven of

the syllabus. I would reverse Daly’s conviction and remand the cause for a new trial.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            7
