[Cite as State v. Turney, 2020-Ohio-4148.]




                             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


                                              ...........

                                AMENDED OPINION
                          (Amending Opinion Rendered June 12, 2020)

                            Rendered on the 20th day of August, 2020.

                                              ...........

STEPHANIE COOK, Atty. Reg. No. 0067101, City of Dayton Prosecutor’s Office, 335
West Third Street, Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

BLAISE KATTER, 3240 Henderson Road, Suite B, Columbus, Ohio 43220
     Attorney for Defendant-Appellant

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




HALL, J.
                                                                                         -2-




       {¶ 1} Defendant, Maria Turney, appeals from her conviction in the Dayton

Municipal Court for operating a motor vehicle under the influence of alcohol (OVI) in

violation of R.C. 4511.19(A)(1)(d). Turney contends that the trial court erred in four ways:

by overruling her motion to suppress evidence obtained as a result of her detainment and

subsequent arrest following a traffic stop, by excluding some of the trial testimony from

her expert witness, by omitting a jury instruction that she requested, and by limiting

witness testimony and her closing arguments. We conclude the trial court did not err in

regard to these assignments and therefore affirm Turney’s conviction.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       {¶ 2} Around 2:30 a.m. on December 16, 2017, University of Dayton Police Officer

Tiffany Oldham saw Turney make a wide right-hand turn from Brown Street completely

into an opposite-direction lane on Stewart Street before promptly moving into the correct

lane. Officer Oldham initiated a traffic stop, and Turney pulled over after making a right-

hand turn onto Rubicon Street. Oldham approached Turney’s vehicle, and while speaking

to Turney, Oldham could smell alcohol coming from Turney’s vehicle and on Turney’s

breath. Officer Oldham also thought that Turney’s speech was slightly slurred and that

her eyes looked glassy. Meanwhile, Officer Joseph Wilhelm, also a university police

officer, arrived to assist Oldham. Officer Wilhelm walked along the passenger side of

Turney’s vehicle and shone his flashlight inside. On the front passenger floorboard, he

saw a bottle containing an alcoholic beverage.

       {¶ 3} The officers went back to Oldham’s cruiser, and Oldham told Wilhelm her

observations and concerns about Turney’s ability to drive. Oldham asked Wilhelm to
                                                                                         -3-


speak to Turney himself to see if he noticed any sign of intoxication. Officer Wilhelm

returned to Turney’s vehicle and asked her to step out. Once she was out, Wilhelm too

thought that Turney’s eyes looked red and glassy, and when she spoke, he detected a

strong odor of alcohol on her breath. Turney admitted that she had consumed at least

one alcoholic beverage.

       {¶ 4} Based on his and Oldham’s observations, Officer Wilhelm suspected that

Turney may be intoxicated, so he asked her to submit to field sobriety tests, and she

agreed. He administered several tests, including horizontal gaze nystagmus,1 the walk-

and-turn2 and one-leg-stand3 tests. Officer Wilhelm noticed that Turney failed to follow

his instructions for the walk-and-turn test. She began the test too soon, took the wrong

number of steps, turned incorrectly, and did not walk heal to toe. During the one-leg-stand

test, Officer Wilhelm watched as Turney swayed and had to put her foot down three times,

which led him to cut the test short. Based on the field sobriety tests and their other


1
  In the horizontal gaze nystagmus test, “an officer holds a stimulus, (generally a pen)
twelve to fifteen inches away from an individual's face, and the individual is directed to
follow the stimulus with his or her eyes.” Officers assess intoxication based on whether
the eyes follow the stimulus smoothly, bounce around, or exhibit “involuntary jerking.”
State v. Adams, 2d Dist. Montgomery No. 27141, 2017-Ohio-7743, 97 N.E.3d 1137, ¶ 11.
2 “The walk-and-turn test requires the suspect to walk a given number of steps, heel-to-

toe, in a straight line. The suspect is then told to turn around and walk back in the same
manner. During the test, the suspect is told to keep his or her hands at his or her sides.
The officer assesses a suspect’s performance according to the degree to which the
suspect exhibits a lack of balance or coordination.” State v. Homan, 89 Ohio St.3d 421,
422, 732 N.E.2d 952, fn. 2 (2000).
3 “The one-leg-stand test requires the suspect to stand with his or her feet together and
his or her arms at his or her sides. The suspect is then told to hold one leg straight and
forward about eight to twelve inches off the ground for approximately thirty seconds. While
in this position, the suspect counts off the number of seconds. At all times, the suspect is
to keep his or her arms at his or her sides and to watch his or her raised foot. The officer
demonstrates the test before administering it.” Homan at 422, fn. 3.
                                                                                           -4-


observations, the officers arrested Turney for operating a motor vehicle under the

influence of alcohol.   Upon inventorying the vehicle after the arrest, the officers observed

the closed bottle containing an alcoholic beverage on the front passenger floorboard, a

“growler,” described as a refillable souvenir drinking cup from a bar or liquor

establishment, in the rear driver’s side seat, and a stray cork.

       {¶ 5} The officers asked Turney if she would submit to a breath test, and she

agreed. Because the University of Dayton Police Department did not have a breath

machine operator available to administer the test, they took Turney to the Dayton Police

Department. There, Dayton Officer Jonathan Seiter administered the breath test. It

registered a breath alcohol concentration (BAC) level of 0.133, well over the 0.08 legal

limit for driving in Ohio. Turney was charged with operating a motor vehicle under the

influence of alcohol as an impaired driving offense4 and as a per se offense under R.C.

4511.19(A)(1)(d) (BAC level of 0.08 - 0.169) and with a marked-lane violation under R.C.

4511.33.

       {¶ 6} Turney filed a motion to suppress the results of the field sobriety tests and

the breath test. After a hearing, the trial court suppressed the results of the field sobriety

tests but not of the breath test. The court concluded that the state had failed to lay the

required foundation for admitting the field sobriety tests because they were not shown to

have been conducted in compliance with National Highway Traffic Safety Administration

(NHTSA) regulations, but it rejected Turney’s arguments that the officers did not have



4 She was charged the offense of driving while impaired under either R.C.
4511.19(A)(1)(a) or R.C. 4511.19(A)(1)(h)—the record is inconsistent. Which section was
charged does not matter, though, because the state dismissed the impaired driving
charge before trial.
                                                                                          -5-


reasonable articulable suspicion to detain her for the purpose of administering the tests

and that they did not have probable cause to arrest her for an OVI offense.

       {¶ 7} In March 2019, the per se OVI was tried to a jury, and the jury found Turney

guilty. The trial court also found her guilty of the marked-lane violation. She was

sentenced to 180 days in jail with 177 days suspended, with a three-day weekend

intervention program in lieu of incarceration, and her license was suspended for one year.

       {¶ 8} Turney appeals.

                                       II. ANALYSIS

       {¶ 9} Turney assigns four errors to the trial court.

                                  A. Motion to suppress

       {¶ 10} The first assignment of error alleges:

       THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO

       SUPPRESS.

       {¶ 11} Turney contends that, in overruling parts of her motion to suppress, the trial

court erroneously concluded that the officers had a reasonable, articulable suspicion that

she was intoxicated to justify detaining her for field sobriety testing. Turney also contends

that they did not have probable cause to arrest her for operating a motor vehicle while

under the influence of alcohol. Turney argues that because her detainment and

subsequent arrest were unlawful, the result of the breath test should have been

suppressed.

       {¶ 12} We apply the following standard of review: “In reviewing the ruling on a

motion to suppress, an appellate court must accept the trial court’s supported findings of

fact as true. The court must then determine whether the facts satisfy the applicable legal
                                                                                           -6-


standard; this is done without deference to the conclusion of the trial court.” (Citations

omitted.) State v. Brown, 2d Dist. Greene No. 2011-CA-52, 2012-Ohio-3099, ¶ 12.

                     Reasonable, articulable suspicion of intoxication

       {¶ 13} Although Turney does not contest the lawfulness of the initial traffic stop,

she argues that she was unlawfully detained because the officers lacked the requisite

reasonable, articulable suspicion that she was driving under the influence to justify

prolonging the traffic stop for the purpose of field sobriety testing.

       {¶ 14} To justify further detention to conduct field sobriety testing after a lawful

stop, “the officer must have a reasonable, articulable suspicion that a person is driving

under the influence[.]” Id. at ¶ 13.       To determine whether there was reasonable,

articulable suspicion, the court must evaluate the totality of the circumstances,

considering them “ ‘through the eyes of the reasonable and prudent police officer on the

scene who must react to events as they unfold.’ ” State v. Gladman, 2d Dist. Clark No.

2013-CA-99, 2014-Ohio-2554, ¶ 14, quoting State v. Heard, 2d Dist. Montgomery No.

19323, 2003-Ohio-1047, ¶ 14.

       {¶ 15} “Many observations can satisfy this reasonable, articulable suspicion,

including the odor of an alcoholic beverage emanating from the vehicle, glassy bloodshot

eyes, * * * and slow or slurred speech.” (Citation omitted.) Brown at ¶ 13. Here, at the

suppression hearing, Officer Oldham testified that she saw Turney commit a traffic

violation, even if only momentarily, by driving entirely in a lane designated for the opposite

direction. Oldham said that she detected the odor of alcohol coming from Turney’s vehicle

and from Turney herself, and Oldham noticed that Turney’s speech was slightly slurred

and that her eyes looked glassy. Officer Wilhelm also thought that Turney’s eyes looked
                                                                                         -7-


red and glassy and detected a strong odor of alcohol on her breath. Based on these

observations, the officers decided to expand the scope of the traffic stop to include the

field sobriety testing.

       {¶ 16} In ruling on Turney’s motion to suppress, the trial court implicitly found

credible the officers’ testimony about their observations. Given the totality of the

circumstances testified to by the officers, we conclude that they had a reasonable,

articulable suspicion that Turney was driving under the influence to justify detaining her

for field sobriety testing.

                                 Probable cause to arrest

       {¶ 17} Turney next argues that her arrest for operating a vehicle under the

influence of alcohol was an unlawful seizure because the officers lacked probable cause

to make the arrest.5

       {¶ 18} Probable cause in the context of an arrest for operating a vehicle under the

influence exists if the totality of the circumstances is sufficient to make a prudent person

believe that the suspect was driving under the influence. See State v. Homan, 89 Ohio

St.3d 421, 427, 732 N.E.2d 952 (2000); Brown, 2d Dist. Greene No. 2011-CA-52, 2012-

Ohio-3099, at ¶ 25.

       {¶ 19} Here, in addition to Officer Oldham’s initial observations, Officer Wilhelm

testified that after Turney had stepped out of her vehicle, he too noticed her eyes and the

odor of alcohol on her breath, which he said was strong:

               A: * * * [A]t that point in time I observed that her eyes were red and



5 Although the parties argued this issue, the trial court did not address it in its written
suppression decision. We consider this an implicit rejection of Turney’s argument.
                                                                                         -8-


       glassy and I detected the strong odor of an alcoholic beverage em[a]nating

       from her when she spoke.

              Q: Ok and you were able to quantify it as strong?

              A: That’s correct.

(Tr. 53.) Wilhelm later testified again about “the strong odor of an alcoholic beverage that

[he] detected from her breath.” (Tr. 71.) Turney also admitted to him that she had

consumed at least one alcoholic beverage.

       {¶ 20} Officer Wilhelm further testified about what he observed while administering

the field sobriety tests. He said that while performing the walk-and-turn test, Turney began

the test too soon, took an incorrect number of steps, turned incorrectly, and failed to walk

heel to toe. He also testified that when Turney attempted the one-leg-stand test, she

swayed and put her foot down three times before the end of the test.

       {¶ 21} Turney argues that these observations were not admissible, because the

results of the field sobriety tests were suppressed by the trial court. (The test results

were suppressed primarily because the state did not present, or ask the trial court to take

notice of, the NHTSA standards with which the tests must substantially comply.) We

disagree with Turney’s argument that all the officers’ observations during the tests must

be entirely ignored because the results were suppressed.

       {¶ 22} The Ohio Supreme Court has held that “a law enforcement officer may

testify at trial regarding observations made during a defendant’s performance of

nonscientific standardized field sobriety tests.” State v. Schmitt, 101 Ohio St.3d 79, 2004-

Ohio-37, 801 N.E.2d 446, ¶ 15. According to the Court, these nonscientific field sobriety

tests “involve simple exercises, such as walking heel-to-toe in a straight line (walk-and-
                                                                                        -9-


turn test).” Id. at ¶ 14. We conclude that the officer’s observations during the walk-and-

turn and the one-leg-stand tests could be considered. See State v. Boczar, 113 Ohio

St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 25. (nonscientific field sobriety tests

include the walk-and-turn test and the one-leg stand test).

      {¶ 23} As we previously noted, the trial court implicitly found both officers’

testimony credible. Based on Officer Wilhelm’s observations during the nonscientific

aspects of the field sobriety tests, the strong odor of alcohol he detected on Turney’s

breath, and both officers’ observations about her glassy eyes, plus the alcoholic beverage

that Officer Wilhelm saw beside Turney in her vehicle, we think that a prudent person

would have believed that Turney was driving under the influence of alcohol. Therefore,

the officers had probable cause to arrest her.

      {¶ 24} Because Turney’s detainment and subsequent arrest were lawful, the trial

court did not err by refusing to suppress the result of a subsequent breath test as long as

it was properly conducted.

      {¶ 25} The first assignment of error is overruled.

                             B. Excluding expert testimony

      {¶ 26} The second assignment of error alleges:

      THE TRIAL COURT ERRED BY EXCLUDING A RELEVANT, PROBATIVE

      EXPERT OPINION RELATING TO THE SCIENTIFIC EVIDENCE

      OBSERVABLE AT A SPECIFIC ALCOHOL LEVEL (BAC).

      {¶ 27} The only OVI charge at issue in Turney’s jury trial was a “per se” offense

based on having a prohibited BAC level in violation of R.C. 4511.19(A)(1)(d), which

prohibits a person from operating a vehicle if “[t]he person has a concentration of eight-
                                                                                           -10-


hundredths [0.08] of one gram or more but less than seventeen-hundredths [0.17] of one

gram by weight of alcohol per two hundred ten liters of the person’s breath.” A

determination that a defendant committed the per se offense in R.C. 4511.19(A)(1)(d)

requires only that the trier of fact find that, while operating a vehicle, the concentration of

alcohol in the defendant’s breath was at the proscribed level. See Defiance v. Kretz, 60

Ohio St.3d 1, 573 N.E.2d 32 (1991). “The accuracy of the test results is a critical issue in

determining a defendant’s guilt or innocence.” Id. at 34.

       {¶ 28} The General Assembly has legislatively provided for the admission of tests

used to determine alcohol levels based on the testing of blood, breath, or urine. R.C.

4511.19(D)(1)(b) pertinently states that “[i]n any criminal prosecution * * * for a violation

of division (A) or (B) of this section * * *, the court may admit evidence on the concentration

of alcohol * * * in the defendant’s * * * breath * * * at the time of the alleged violation as

shown by chemical analysis of the substance withdrawn within three hours of the time of

the alleged violation.” Further, the withdrawn breath “shall be analyzed in accordance with

methods approved by the director of health by an individual possessing a valid permit

issued by the director pursuant to section 3701.143 of the Revised Code.” The General

Assembly, then, has determined that a breath-test result is reliable evidence when the

test complies with Ohio Department of Health (ODH) regulations.

       {¶ 29} For this reason, the Ohio Supreme Court has held that a defendant may not

attack the general reliability of a properly conducted breath test. State v. Vega, 12 Ohio

St.3d 185, 190, 465 N.E.2d 1303 (1984); Cincinnati v. Ilg, 141 Ohio St.3d 22, 2014-Ohio-

4258, 21 N.E.3d 278, ¶ 23. But the Court has said that a defendant may still challenge

“the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific
                                                                                          -11-


test results or whether the specific machine used to test the accused operated properly

at the time of the test.” Ilg at ¶ 31.

       {¶ 30} Here, Turney sought to challenge her breath-test result with expert

testimony. A portion of the testimony excluded by the trial court was proffered outside the

presence of the jury. Turney’s witness, Dr. Robert Belloto, a pharmacologist and

toxicologist, testified by reference to an article, “Acute Alcohol Intoxication,” published in

the European Journal of Internal Medicine 19 (2008) at 561-567 (Defendant’s Exhibit 1

for purposes of appeal). The article contained a brief table, part of which listed “main

clinical symptoms” of a person with a BAC level between 0.1 and 0.2.

       Q: So Dr. Belloto, you have a study there in front of you that talks about that

       – or a paper that talks about that?

       A: Yes, it’s a review of alcohol intoxication.

       Q: Tell me the name of the article.

       A: Acute alcohol intoxication

       Q: And does it discuss the symptoms of alcohol - the effects of alcohol at

       both low levels and at higher levels?

       A: Yes.

       Q: And here all I want to know is I’m looking at an alcohol level that would

       be above a .1 but below a .2.

       A: Ok.

           ***

       Q: So can you just tell me what those – what those symptoms would be that

       you expect to see for someone who had over a .1 alcohol level?
                                                                                         -12-


       A. Over .1?

       Q: Yeah.

       A: Possibly but not absolutely.

       Q: Right.

       A: Slurred speech, hyperreflexia * * * dizziness, lack of coordination, mood

       personality, behavior changes, prolonged reaction time * * * amnesia might be

       getting in to the .2 there.6

(Tr. 511-512.) The proffer continued with Dr. Belloto testifying that he reviewed the police

videos available in discovery to see if Turney’s symptoms that he observed on the

recordings were consistent with someone who had a .133 BAC. Dr. Belloto expressed his

opinion “[t]That it was not consistent” (Tr. 513) and he did not see symptoms in the .1 to

.2 range.

       {¶ 31} The trial court did allow substantial testimony from Dr. Belloto. He testified

before the jury about the design and theories behind the DataMaster breathalyzer’s


6 Curiously, Dr. Belloto skipped over “nystagmus” as a symptom listed on the table he
was apparently reading from, which might have opened the door for rebuttal evidence
that Turney did display nystagmus. The article’s table does not list nystagmus only as
detected in substantial compliance with NHTSA guidelines. Query whether observable
signs of nystagmus, excluded from the state’s case-in-chief for lack of presentation of
NHTSA guidelines, would have been admissible in rebuttal to show Turney did show
signs and symptoms of nystagmus expected in a BAC range of .1 to .2?
       Even more curious, in researching whether there was any case where Dr. Belloto’s
opinions that were excluded here may have been admitted, we stumbled upon a case in
which he submitted a report with information diametrically opposed to the intended expert
evidence in this case. In State v. Foster, 8th Dist. Cuyahoga No. 108340, 2020-Ohio-
1379, during Dr. Belloto’s testimony, defense counsel attempted to introduce a “dose-
response” curve chart that was part of Dr. Belloto’s report in order to show “that a person’s
blood-alcohol content level is not indicative of intoxication or the appearance of
intoxication.” (Emphasis added.) Id.
                                                                                        -13-


operation. He testified about limitations of the DataMaster and why a test might be

inaccurate, and he testified about how gastroesophageal reflux disease might affect a

test result. But the trial court concluded that testimony about impairment at various BAC

levels or Turney’s display of impairment symptoms from the videos was irrelevant in the

prosecution of a per se OVI offense and that that testimony could confuse or mislead the

jury, and therefore the court did not allow it. This exclusion is the subject of the second

assignment of error.

      {¶ 32} We begin our analysis of this assignment with the standard of review. “[T]he

admission of evidence lies within the broad discretion of the trial court, and a reviewing

court should not disturb evidentiary decisions in the absence of an abuse of discretion

that has created material prejudice. Thus, our inquiry is confined to determining whether

the trial court acted unreasonably, arbitrarily, or unconscionably in deciding the

evidentiary issues * * *.” (Citations omitted.) State v. Conway, 109 Ohio St.3d 412, 2006-

Ohio-2815, 848 N.E.2d 810, ¶ 62. We also consider that “[a]lthough relevant, evidence is

not admissible if its probative value is substantially outweighed by the danger * * * of

confusion of the issues, or of misleading the jury.” Evid. R. 403(A). For multiple reasons,

we find no abuse of discretion in the exclusion of the proffered evidence as inadmissible

or in the determination that the value of the excluded evidence was substantially

outweighed by danger of confusion of the issues and misleading the jury.

      {¶ 33} The trial court relied on State v. Boyd, 18 Ohio St.3d 30, 479 N.E.2d 850

(1985), to conclude that Dr. Belloto’s expected-behavior testimony was irrelevant. The

actual BAC test level in the Boyd case was not specified in the opinion, but it was

undoubtedly at or above .10, which was the per se floor at that time. The Ohio Supreme
                                                                                         -14-


Court held that whether a defendant was actually impaired is irrelevant to a per se offense:

“Standing alone,” a defendant’s “appearance, manner of speech and walking, and lack of

any symptoms of intoxication are not relevant evidence and, therefore, not admissible.”

Id. at 31. The Court determined that testimony from a lay witness that the defendant

“walked in a normal manner, that his speech was normal, and that at all times he was not

under the influence of alcohol” was inadmissible. Id. at 30. Despite the fact that the

excluded testimony in Turney’s case would have been from an expert, we see little if any

difference. The proffered expert testimony would have been twofold: 1) that in a range of

.100 to .200 BAC a person would be expected to have certain symptoms, and 2) that the

expert did not observe those symptoms in Turney on the videos. Both areas of testimony

would essentially be evidence to suggest that Turney was not impaired enough to have

tested .133. Such testimony is not functionally different than testimony that she “walked

in a normal manner, that [her] speech was normal, and that at all times [s]he was not

under the influence of alcohol” to a level of.133 BAC. In other words, the testimony would

have been that Turney was not impaired to the level the witness would have expected for

that BAC level. Such testimony would go to impairment, which under Boyd is simply

inadmissible when a per se violation is the only charge.

       {¶ 34} Turney argues the excluded evidence was permitted under Vega, 12 Ohio

St.3d 185, 190, 465 N.E.2d 1303, and Ilg, 141 Ohio St.3d 22, 2014-Ohio-4258, 21 N.E.3d

278, because she only challenged the specific test result or whether the specific machine

operated properly. We disagree. First of all, Vega was not a per se case. Vega analyzed

the statute that existed before statutory per se violations became effective in Ohio on

March 16, 1983. At that time, a test over .10 created a rebuttable presumption that the
                                                                                           -15-


offender was driving under the influence of alcohol, so whether the driver was or was not

under the influence was an open question for contrary evidence. The holding of Vega

was simply that an accused may not make a general attack on the reliability of an

approved breath-testing machine with expert evidence. But, the court said, “evidence of

sobriety, such as a videotape or testimony by the accused or by witnesses concerning

the accused's sobriety and the amount of consumption, as well as technical evidence,

such as additional chemical tests [and] [d]efense expert testimony as to testing

procedures at trial going to weight rather than admissibility is allowed. * * * The

presumption created by the scientific test is thus to be considered by the jury and the

court along with the other evidence as to whether or not the accused was intoxicated.” Id.

at 189. Because Vega involved whether the accused was driving under the influence,

an impairment and not a per se violation, its precedential value for a per se case was

eliminated by the Supreme Court’s subsequent decision in Boyd, which we now follow.

       {¶ 35} We also conclude Ilg is not controlling here. Ilg dealt with whether the trial

court correctly excluded a breath test result as a sanction for the State’s failure to provide

discovery of “data from the specific Intoxilyzer 8000 machine that tested [defendant’s]

breath in order to challenge whether it operated properly on the day of his arrest in an

effort to establish that the test results in his case were inaccurate.” Id. at ¶ 3. Indeed, the

syllabus holds that an accused may challenge the “accuracy, competence, admissibility,

relevance, authenticity, or credibility of specific test results or whether the specific

machine used to test the accused operated properly.” But the excluded evidence here did

not challenge the process, procedure or circumstances surrounding the administration of

her test or the operation or the functionality of the machine. Rather, the evidence was
                                                                                         -16-


designed to promote an ethereal inference that, because Turney was not impaired,

something must have been wrong with the test. We conclude that type of evidence is

prohibited by Boyd and is not the type of evidence contemplated about a specific test

process or procedure or the machine operation that was permitted by Vega or Ilg.

Accordingly, the trial court did not err by excluding the proffered evidence.

       {¶ 36} We have found no case law that supports Turney’s contention that the

proffered evidence should have been admissible in regard to a per se OVI charge. The

closest we found was a case neither party has cited: State v. Durnwald, 163 Ohio App.3d

361, 2005-Ohio-4867, 837 N.E.2d 1234 (6th Dist.). In that case, the defendant had been

charged under R.C. 4511.19 with both an impairment violation and a per se violation. To

prove both charges, the state had presented the result of a properly conducted breath

test showing a BAC level of 0.22. The defendant claimed that the result was inaccurate

and sought to present expert testimony “to describe the actions and level of impairment

shown by a person with an 0.22 BAC test level compared to [defendant’s] behavior.” Id.

at ¶ 11. The trial court had prohibited the expected-behavior testimony “for the purposes

of refuting the R.C. 4511.19(A)(1) impairment charge.” Id. at ¶ 50. The Sixth District

concluded that the trial court had erred by improperly limiting the expert’s testimony. “In

our view,” said the appellate court, “the expert testimony regarding the expected behavior

of a person with a 0.22 BAC level was relevant to [defendant’s] defense against the

accuracy of his particular BAC test.” Id. “It was simply an alternative piece of evidence to

support [defendant’s] theory of the inaccuracy of the specific test and may have assisted

and clarified the jury’s understanding of the weight to be given to the BAC test results for

each charge.” Id.
                                                                                         -17-


       {¶ 37} 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.

       {¶ 38} Assuming arguendo that symptoms at various BAC levels would somehow

be admissible, the second part of Dr. Belloto’s testimony was inadmissible for a separate

reason. His opinion about what he believed he saw or did not see on the videos would

have required introduction of the videos upon which he based his opinion. But the jury

could have readily determined what appeared on the videos itself and could have readily

determined which of the listed symptoms, if any, were evident. Although a jury may not

know what symptoms could be expected at different BAC levels (the first part of Dr.

Belloto’s excluded testimony), there was nothing special about the symptoms Dr. Belloto

listed. It was entirely within the knowledge, experience and capability of the jury to watch

the videos and determine what symptoms it believed were observable, rather than rely

on an expert witness’s interpretation of what he thought he saw on the videos. That

rendered the second part of Dr. Belloto’s excluded testimony inadmissible under Evid. R.
                                                                                         -18-


702(A). Pertinent here, a witness may only testify as an expert if “testimony either relates

to matters beyond the knowledge or experience possessed by lay persons or dispels a

misconception common among lay persons.” Because observing the videos and

observing how Turney acted and what symptoms appeared was not beyond the

knowledge of laypersons, allowing the second part of Dr. Belloto’s proffered testimony

would have been contrary to the rules of evidence, would have invaded the province of

the jury, and would have been inadmissible.

       {¶ 39} Secondly, Turney did not provide sufficient foundation for introduction of the

article on which Dr. Belloto relied, although that perhaps could have been cured upon

proper presentation to the jury. But we note that the article did not indicate how, or from

where, the brief table of symptomatology was developed. And the breadth of the category

of symptoms from .1 to .2 is so wide we question whether it would be helpful for identifying

or narrowing expected symptomatology, i.e. there is no information of which symptoms

might appear at what intermediate BAC levels. Indeed, Dr. Belloto’s own testimony

diminished the accuracy of the symptomatology table. In answering a question as to what

symptoms he would expect to see, he replied “possibly but not absolutely.” That was likely

because the article itself recognized that “several factors” could influence acute alcohol

intoxication, such as the amount of alcohol, body weight, tolerance, the percentage of

alcohol in a beverage, and the time period of ingestion. Exhibit 1 at 562. Even then,

“[s]ymptoms are usually related to blood alcohol concentration.” (Emphasis added.) Id.

So the best that could be said is that the listed symptoms might appear, but at what

intermediate BAC we would not know, and there were many variables. The indefinite and

uncertain nature of the proffered evidence presented a danger that its questionable
                                                                                          -19-


probative value would be substantially outweighed by risk of confusion or misleading the

jury. At the very least, we conclude the trial court did not abuse its discretion in excluding

the evidence.

       {¶ 40} Perhaps more indicative of the danger of jury confusion was that

introduction of the excluded evidence would have made the trial deteriorate into a dispute

about Turney’s impairment, an issue that was not relevant. The state did not, and was not

permitted to, directly introduce evidence of impairment, because this was solely a per se

case. Allowing the defense to introduce evidence of lack of impairment would undoubtedly

produce a rebuttal response from the state about Turney’s poor performance during the

non-scientific parts of the field sobriety tests, or her demeanor, comportment, judgment,

slurred speech, mood or reaction time. The trial would have devolved into an argument

about whether Turney appeared to be impaired, rather than whether she had a prohibited

BAC. In this regard we agree with the trial court’s determination and conclude that the

probative value of the excluded evidence was outweighed by the danger of confusion and

misleading the jury about what they had to consider and what they had to decide.

       {¶ 41} The second assignment of error is overruled.

                                   C. Jury instructions

       {¶ 42} The third assignment of error alleges:

       THE TRIAL COURT ERRED BY NOT GIVING A REQUESTED JURY

       INSTRUCTION THAT WAS A CORRECT STATEMENT OF LAW AND

       INSTEAD ISSUED AN INSTRUCTION THAT OMITTED A CRUCIAL

       PORTION OF THE STATUTE.

Turney argues that the trial court refused to include necessary statutory language in the
                                                                                          -20-


jury instruction about the elements of R.C. 4511.19.

       {¶ 43} A trial court’s refusal to give a particular jury instruction is reviewed for an

abuse of discretion. State v. Echevarria, 8th Dist. Cuyahoga No. 105815, 2018-Ohio-

1193, ¶ 27. But whether a jury instruction correctly states the applicable law is reviewed

de novo. State v. Rac, 2019-Ohio-893, 124 N.E.3d 878, ¶ 17 (2d Dist.), citing Echevarria.

Under either review standard, a jury instruction “ ‘must be viewed in the context of the

overall charge, * * *’ rather than in isolation.” State v. Burchfield, 66 Ohio St.3d 261, 262,

611 N.E.2d 819 (1993), quoting State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979),

paragraph four of the syllabus.

       {¶ 44} Turney was tried for violating R.C. 4511.19(A)(1)(d), which pertinently

states: “No person shall operate any vehicle * * * within this state, if, at the time of the

operation * * * [t]he person has a concentration of eight-hundredths of one gram or more

but less than seventeen-hundredths of one gram by weight of alcohol per two hundred

ten liters of the person’s breath.” This is the jury instruction given by the court:

       The defendant is charged with operating a vehicle with a prohibited

       concentration of alcohol in her system in violation of Ohio Revised Code

       4511.19(A)(1)(d). Before you can find the defendant guilty, you must find

       beyond a reasonable doubt that on or about the 16th day of December,

       2017, in the City of Dayton, Montgomery County, Ohio, Maria Turney,

       operated a vehicle with a concentration of eight hundredths of one gram or

       more but less than seventeen hundredths of one gram by weight of alcohol

       per two hundred and ten liters of the defendant’s breath.

(Tr. 632-633.)
                                                                                          -21-


       {¶ 45} Turney wanted the phrase “at the time of operation” used, arguing that

without the phrase the instruction was an incorrect, or at least incomplete, statement of

law. But the court refused, saying that the phrase was redundant. The court reasoned

that “operated a vehicle” was already in the instruction and subsumed “at the time of

operation.” The court also was concerned that the requested phrase might confuse the

jury by leading it to think that there was a material difference between “operated a vehicle”

and “at the time of operation.”

       {¶ 46} We think that the instruction given to the jury covered the elements of driving

with a prohibited breath-alcohol content under R.C. 4511.19(A)(1)(d). The instruction

informed the jury that before it could find Turney guilty, it had to find that she operated a

motor vehicle with the prohibited breath-alcohol level. We note too that, though not

dispositive, the instruction given by the trial court conformed with the model instruction

for this offense in the Ohio Jury Instructions. See Ohio Jury Instructions, CR Section

711.19(A)(1)(b)-(j) (Rev. May 2019). Lastly, considering the instruction as a whole, we

think that it clearly and fairly expressed the law, and we do not think that Turney was

prejudiced by any omission. Compare Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-

Ohio-2773, 933 N.E.2d 317, ¶ 49-56 (10th Dist.) (concluding that a jury instruction

excluding “at the time of operation” clearly and fairly expressed the law and did not

prejudice the defendant); State v. Fisher, 1st Dist. Hamilton No. C-080497, 2009-Ohio-

2258, ¶ 31-33 (concluding the same).

       {¶ 47} The third assignment of error is overruled.

                       D. Limiting challenges to the breath test

       {¶ 48} The fourth assignment of error alleges:
                                                                                          -22-


        THE TRIAL COURT ERRED BY REPEATEDLY LIMITING THE ABILITY

        OF COUNSEL TO ATTACK THE WEIGHT OF THE EVIDENCE RELATIVE

        TO THE BREATH TEST, IN VIOLATION OF THE DEFENDANT’S RIGHT

        OF CONFRONTATION, DUE PROCESS, AND RIGHT TO PRESENT A

        DEFENSE.

Turney argues that the trial court improperly excluded testimony about procedures for

administering breath tests that, though not legislatively required, would have, according

to her, increased the accuracy and reliability of the result.

        {¶ 49} We apply the abuse of discretion standard to review the trial court’s decision

to exclude evidence. See Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d

810, at ¶ 62.

        {¶ 50} As we have already said, because questions of reliability have been

legislatively resolved, a defendant may not attack the general reliability of a properly-

conducted breath test. Vega, 12 Ohio St.3d at 190, 465 N.E.2d 1303; Ilg, 141 Ohio St.3d

22, 2014-Ohio-4258, 21 N.E.3d 278, at ¶ 23. But the defendant may still present a reason

to doubt the result of her specific breath test by challenging “the accuracy, competence,

admissibility, relevance, authenticity, or credibility of specific test results or whether the

specific machine used to test the accused operated properly at the time of the test.” Ilg at

¶ 31.

                            Limitations on defense questioning

        {¶ 51} Dr. Belloto, the defense expert, claimed expertise on breath tests. His report

stated that he intended to testify about the design and limitations of the BAC

DataMaster—the device used to test Turney’s breath—and additional steps that should
                                                                                         -23-


have been taken that would have provided more confidence in the result. Dr. Belloto also

intended to testify that Turney’s result should not have been relied on. The trial court, on

the state’s motion in limine, issued an order that prohibited Dr. Belloto from testifying

about the design, limitations, validity, and reliability of BAC DataMaster devices in general

and prohibited him from testifying about additional steps, beyond the manufacturer’s

recommended procedures, that could have been taken. But the court made an exception

for testimony about the device’s diagnostic function. The court also allowed Dr. Belloto to

testify about Turney’s specific breath test—the procedures followed, the result, and the

result’s accuracy and reliability.

       {¶ 52} The trial court sustained numerous objections made by the state to

questions about breath testing asked by defense counsel of Dr. Belloto and of the state’s

witnesses. The result, says Turney, was that she was unable to present any testimony

about the inadequacies and insufficiencies of breath-test procedures. As examples, she

cites: questions about the use of two tests to increase confidence in the result; the testing

procedures approved by the ODH compared with standards in the field of forensic

science; the use of a second breath test on another device to increase confidence in or

the accuracy of the result; the diagnostic function of the BAC DataMaster; the possibility

of radio-frequency interference; additional steps that could have increased the reliability

and accuracy of the result; and the (in)adequacy of police training and procedures that

may affect confidence in the result. Turney argues that the trial court basically barred any

testimony about breath-test procedures other than those required by the ODH.

       {¶ 53} Importantly, Turney does not argue that the trial court barred testimony that

her specific breath test was affected by any of these alleged problems. For example, the
                                                                                            -24-


court did not bar testimony that the specific location where her breath test occurred was

particularly vulnerable to radio-wave interference or that the BAC DataMaster used to test

her was affected by such interference. Turney cites no example of the court barring

defense counsel from asking about whether additional steps were necessary to ensure a

reliable and accurate result in her specific situation. In fact, just the opposite was true, as

Turney was permitted to challenge the credibility and accuracy of the specific BAC

DataMaster on which she was tested. Defense counsel cross-examined Officer Seiter,

the officer who conducted Turney’s breath test, at length about the device’s diagnostic

function, about Seiter’s decision not use this function when he administered Turney’s test,

and the significance of not using it. Defense counsel was also permitted to ask Officer

Seiter if he could ask a subject to submit to a second test, and there was testimony that

nothing prevented an officer from administering a second breath test.

       {¶ 54} During Seiter’s cross-examination, what the state often objected to was not

the testimony sought but the (mis)characterization implied by defense counsel’s

questions that, in administering the breath test, Officer Seiter followed only the

“government minimum,” that is, the minimum steps required by the ODH. The state

pointed out that this erroneously suggested that more was needed than simply complying

with ODH regulations. The state had a point. The Ohio Supreme Court cases on this issue

consistently hold that, when a breath test is administered in accordance with ODH

regulations, the result of the test is reliable. So not taking additional steps, like those that

Turney wanted to ask about, did not undermine a properly conducted test’s reliability.

       {¶ 55} There was no dispute that Turney’s breath test was properly done in that all

applicable ODH regulations were followed. The testimony that the trial court excluded
                                                                                          -25-


challenged the general reliability of a properly-conducted breath test, not the reliability of

Turney’s specific test. The law does not permit such challenges. Although Turney thinks

that she should have had the right to present general-reliability challenges, appellate

courts are “ ‘ “charged with accepting and enforcing the law promulgated by the Ohio

Supreme Court, not changing, modifying or ignoring that law.” ’ ” Sabo, 10th Dist. Franklin

No. 04AP-1114, 2006-Ohio-1521, at ¶ 34, quoting State v. Miskel, 10th Dist. Franklin No.

99AP-482, 2000 WL 311920, *2 (Mar. 28, 2000), quoting Columbus v. Duling, 10th Dist.

Franklin No. 96APC07-859, 1997 WL 142502, *2 (Mar. 31, 1997). “ ‘Any change in the

law regarding a defendant’s right to challenge the general scientific reliability of a breath

testing device must come from the Ohio Supreme Court, not this court.’ ” State v. Eberts,

10th Dist. Franklin No. 99AP-1327, 2000 WL 1376447, *2 (Sept. 26, 2000), quoting Duling

at *2; Sabo at ¶ 34 (quoting the same).

       {¶ 56} Because the Ohio Supreme Court has prohibited challenges to the general

reliability of properly-conducted breath tests, we must reject Turney’s argument that the

prohibition violated her constitutional rights. We note, though, that the United States Court

of Appeals for the Sixth Circuit concluded in Miskel v. Karnes, 397 F.3d 446 (6th

Cir.2005), that the prohibition does not deny a defendant the right to confront witnesses

or violate the defendant’s due-process right to present a complete defense, because it

does not preclude the defendant from challenging the specific breath test at issue. We

further note that the federal district court decision on which Turney primarily relies,

Knapke v. Hummer, S.D.Ohio No. 2:10-cv-485, 2012 WL 1883854 (May 21, 2012) (a

state case that was before the federal court on a writ of habeas corpus), acknowledged

that it was bound by Miskel’s holding that the prohibition is constitutional. The reason that
                                                                                           -26-


Knapke found a constitutional violation was because the trial court had prevented the

defendant from challenging the accuracy and reliability of the specific testing device used.

       {¶ 57} Here, like in Miskel, the trial court did not prohibit challenges to the specific

breath test at issue. The problem was that Turney wanted to challenge the general

reliability and accuracy of testing procedures. As both Miskel and Knapke agree, that is

not permitted under Ohio Supreme Court law.

                        Limitations on defense closing arguments

       {¶ 58} Turney also argues that the trial court erred by sustaining a series of

objections to defense counsel’s closing arguments about the weight of the evidence,

denying the defense the ability to challenge the credibility of her breath-test result.

       {¶ 59} The Ohio Supreme Court has said that “[b]oth parties are given latitude

during closing arguments to address what the evidence has shown and what reasonable

inferences may be drawn from that evidence.” (Citation omitted.) State v. Ford, 158 Ohio

St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 306. “ ‘Trial counsel may advocate and

persuade to the limit of his or her ability and enthusiasm but cannot misrepresent

evidence or go beyond the limits set by the trial court.’ ” Id., quoting State v. Powell, 177

Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 45 (4th Dist.). “The assessment of

whether the permissible bounds of closing argument have been exceeded is, in the first

instance, a discretionary function to be performed by the trial court. Such determination

will not be reversed on appeal absent an abuse of discretion.” Pang v. Minch, 53 Ohio

St.3d 186, 559 N.E.2d 1313 (1990), paragraph three of the syllabus.

       {¶ 60} Turney points to three objections that, she says, the trial court should not

have sustained. First, the state objected to defense counsel’s assertion that two breath
                                                                                          -27-


tests should be required:

              [Defense Counsel]: * * * I think the City of Dayton has let them down

       in not putting video cameras in the breath test room and has let them down

       in not basically requiring them to do two tests. Two tests—

              The State: Judge I’m going to object here.

              The Court: No—objection sustained. There’s no requirement

       whatsoever of two tests.

(Tr. 614.) Second, the state objected to defense counsel’s assertion about the breath

testing device’s diagnostic feature:

              [Defense Counsel]: * * * The City of Dayton could require the officers

       to do a diagnostic check you heard a lot about.

              The State: Judge, I’m going to object. They heard nothing about a

       diagnostic test and it’s not a requirement imposed upon us.

              [Defense Counsel]: Your honor, Detective Moyer talked about a

       diagnostic—that he understood (inaudible) and so did Sergeant Seiter.

       They can do a diagnostic test.

(Tr. at 614-615.) The trial court pointed out that neither statutory law nor ODH regulations

require that a diagnostic check be run before administering a breath test and that there is

no such requirement. The court appears to have overruled this objection, saying, “With

that [the absence of a legal requirement] in mind go ahead.” (Tr. at 616.) Finally, the state

objected to defense counsel’s assertions about what procedures the city could have

followed:

              [Defense Counsel]: * * * The City of Dayton could have provided
                                                                                      -28-


                The State: Objection again what we could have done is irrelevant.

                The Court: Again these are all hypotheticals where there is no

       evidence that support it. You are directed to disregard it.

(Tr. at 616.)

       {¶ 61} We do not think that the trial court abused its discretion by limiting the

defense’s closing arguments in any of these instances. The court did not allow Turney to

challenge her breath test in these ways during trial, so it made sense that the court did

not allow the challenges during closing arguments.

       {¶ 62} The fourth assignment of error is overruled.

                                     III. CONCLUSION

       {¶ 63} We have overruled each of the assignments of error. The trial court’s

judgment is affirmed.

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



DONOVAN, J. and WELBAUM, J., concur.




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