[Cite as State v. Turney, 2020-Ohio-4149.]




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

                                                  :
                                                  :
 STATE OF OHIO                                    :   Appellate Case No. 28364
                                                  :
         Plaintiff-Appellee                       :   Trial Court Case No. 2017-TRC-10914
                                                  :
 v.                                               :   (Criminal Appeal from
                                                  :   Municipal Court)
 MARIA TURNEY                                     :
                                                  :
         Defendant-Appellant


                                             ...........

                                         DECISION AND ENTRY
                              Rendered on the 20th day of August, 2020
                                             ...........

PER CURIAM:

        {¶ 1} This matter comes before us on Maria Turney’s App.R. 26(A) application for

reconsideration. We affirmed her conviction for operating a motor vehicle under the influence

of alcohol in violation of R.C. 4511.19(A)(1)(d) in State v. Turney, 2d Dist. Montgomery No.
                                                                                             -2-


28364, 2020-Ohio-3298.

       {¶ 2} “ ‘App.R. 26 provides a mechanism by which a party may prevent miscarriages

of justice that could arise when an appellate court makes an obvious error or renders an

unsupportable decision under the law.’ ” State v. Gillispie, 2012-Ohio-2942, 985 N.E.2d 145,

¶ 9 (2d Dist.), quoting State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th

Dist.1996). “The test generally applied to a motion for reconsideration is that it must call the

court’s attention to obvious errors in a decision or must raise issues that the court either

failed to consider or did not fully consider when the original decision was made.” Id.

       {¶ 3} Turney contends that we made an obvious error in paragraph 37 of our opinion.

We agree. The problematic paragraph reads:

       But Durnwald was both an impairment and a per se case, and the disputed

       evidence was argued to be admissible in response to the impairment charge.

       That distinction was noted by the Tenth District in State v. Sabo, 10th Dist.

       Franklin No. 04AP-1114, 2006-Ohio-1521. In Sabo the trial court had denied

       admission of evidence of “the actions and level of impairment exhibited by a

       person with a .22 BAC test level compared to the defendant’s behavior.” Id. at

       ¶ 27. The evidence had been offered “for the sole purpose of refuting the [per

       se] charge.” Id. at ¶ 31. The case before us involved exclusively a per se

       charge, and we agree with the conclusion in Sabo that levels of impairment

       and comparisons of that behavior to the accused’s behavior are not admissible

       in regard to a per se charge.

Turney correctly points out that the quotation from Sabo is talking about the facts of State v.

Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d 1234 (6th Dist.), so we are
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actually quoting the facts not of Sabo but of Durnwald, which we discussed in the previous

paragraph of our decision. We agree that we made an obvious mistake in our opinion. So

we grant Turney’s application for reconsideration and examine whether our mistake affected

the judgment.

       {¶ 4} The first sentence of paragraph 37 is correct: “Durnwald was both an

impairment and a per se case, and the disputed evidence was argued to be admissible in

response to the impairment charge.” The second part of that sentence is based on

Durnwald’s statement that “Dr. Staubus was not, however, permitted to testify regarding the

expected behavior of someone who tested at 0.22 BAC level, for the purposes of refuting

the R.C. 4511.19(A)(1) impairment charge.” (Emphasis added.) Durnwald at ¶ 50.

Nevertheless, the appellate court determined that the behavior testimony “was relevant to

appellant’s defense against the accuracy of his particular BAC test” because it may have

assisted “the jury’s understanding of the weight to be given to the BAC test results for each

charge.” Id. To prove an impairment charge, the state must prove that the defendant was

“under the influence.” R.C. 4511.19(A)(1)(a). But to prove a per se charge, the state must

prove only that the defendant had a prohibited BAC level. The defendant in Durnwald had

been charged with both types of OVI charges, and to prove both charges, the state

presented a BAC test result showing that the defendant had a 0.22 BAC level. The Durnwald

court’s conclusion that the lack-of-impairment evidence should be admissible to rebut both

charges cannot be reconciled with its statement that the evidence was excluded by the trial

court to rebut the impairment charge. In order to avoid any potential confusion from the first

sentence of paragraph 37, we will reword the first sentence to read: “But Durnwald was both

an impairment and a per se case, and the court of appeals commented that the trial court
                                                                                           -4-


had not admitted the disputed evidence in response to the impairment charge.”

       {¶ 5} Sabo was also both an impairment and a per se case. But in Sabo, the

defendant sought to rebut the per se charge with expert testimony that challenged the

accuracy of the BAC test result based on the potential effects of gastroesophageal reflux

disease (GERD), which testimony the trial court did not permit. The Sabo court distinguished

Durnwald because in that case the disputed testimony concerned expected behavior offered

to rebut the impairment charge. Sabo, 2006-Ohio-1521, at ¶ 31 (saying that “the Durnwald

case stands for a different proposition than that asserted in the instant case”). Sabo went on

to conclude that the GERD testimony was properly excluded.

       {¶ 6} The present case is distinguishable from both Durnwald and Sabo. Like

Durnwald, the disputed expert testimony here concerns expected behavior of impairment,

but unlike that case, the testimony was offered for the sole purpose of rebutting a per se

charge. And like Sabo, the testimony was offered for the purpose of rebutting a per se

charge, but unlike Sabo, the testimony did not concern the potential effects of GERD. While

our reliance on Sabo’s conclusion in paragraph 37 of our opinion is misplaced, that Durnwald

is distinguishable from the present case remains true. Evidence of the lack of impairment

was otherwise admissible in Durnwald because there was a charge of impairment. We

continue to adhere to our conclusion in the final sentence of the paragraph that “levels of

impairment and comparisons of that behavior to the accused’s behavior are not admissible

in regard to a per se charge.” We note too that we gave other reasons in our opinion for our

conclusion that the trial court did not abuse its discretion by excluding the expected-

impairment evidence.

       {¶ 7} We conclude that the error in our opinion is therefore harmless, as it did not
                                                                                            -5-


affect our resolution of the matter at issue. So our final judgment in this case is unaffected.

Still, we will file an amended opinion that corrects paragraph 37 to read as follows:

       But Durnwald was both an impairment and a per se case, and the court of

       appeals commented that the trial court had not admitted the disputed evidence

       in response to the impairment charge. That distinction was noted by the Tenth

       District in State v. Sabo, 10th Dist. Franklin No. 04AP-1114, 2006-Ohio-1521.

       Sabo was also both an impairment and a per se case, but unlike Durnwald,

       the disputed evidence in Sabo concerned the potential effects of GERD and

       was presented to rebut only the per se charge. Also, in Sabo there was no

       testimony that the defendant even had the condition. It was on these bases

       that Sabo distinguished Durnwald. The case before us involved exclusively

       expected-behavior testimony to rebut a per se charge. We conclude that levels

       of impairment and comparisons of that behavior to the accused’s behavior are

       not admissible exclusively in regard to a per se charge.

       {¶ 8} SO ORDERED.



                                   MARY E. DONOVAN, Judge




                                   MICHAEL T. HALL, Judge




                                   JEFFREY M. WELBAUM, Judge
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Copies mailed to:

Stephanie L. Cook
City of Dayton Prosecutor’s Office
335 W. Third Street, Room 372
Dayton, OH 45402

Blaise Katter
3240 Henderson Road, Suite B
Columbus, OH 43220

Hon. Thomas Hagel, Visiting Judge
c/o Dayton Municipal court
301 W. Third Street
Dayton, OH 45402

COA2//LR
