CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. CITY OF COLUMBUS Case No Plaintiff-Appellee,

Transcription

1 IN THE SUPREME COURT OF OHIO CITY OF COLUMBUS Case No vs. Plaintiff-Appellee, STEPHEN E. ALESHIRE, Defendant-Appellant. On Appeal from the Franklin County Court of Appeals, Tenth Appellate District Court of Appeals Case No. 09AP-104 APPELLEE'S MEMORANDUM IN OPPOSITION OF JURISDICTION CITY OF COLUMBUS, DEPARTMENT OF LAW RICHARD C. PFEIFFER, JR. ( ), CITY ATTORNEY LARA N. BAKER ( ), CITY PROSECUTOR MELANIE R. TOBIAS ( ), COUNSEL OF RECORD DIRECTOR, APPELLATE UNIT ORLY AHRONI ( ), ASSISTANT CITY PROSECUTOR 375 South High Street, 17"' Floor Columbus, Ohio Telephone: (614) Fax: (614) COUNSEL FOR APPELLEE, CITY OF COLUMBUS JON J. SAIA ( ), COUNSEL OF RECORD 713 South Front Street Columbus, Ohio Telephone: (614) COUNSEL FOR APPELLANT, STEPHEN E. ALESHIRE CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS PAGE STATEMENT OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT OF PUBLIC OR GREAT GENERAL INTEREST... 1 STATEMENT OF THE CASE AND FACTS... 3 Reply to Appellant's Sole Proposition of Law... 6 CONCLUSION... 9 CERTIFICATE OF SERVICE... 10

3 STATEMENT OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT OF PUBLIC OR GREAT GENERAL INTEREST The sole issue presented is whether the trial court abused its discretion by not including the words "at the time of operation" in the jury instructions for the offense of operating a vehicle with a prohibited breath alcohol concentration under the Columbus City Code. This Court will not resolve any unique or unsettled area of the law by considering this issue. A trial court is not required to give a defendant's requested jury instructions verbatim, as long as the instructions given contain a correct statement of the law and are appropriate to the facts of the case. State v. Lessin (1993), 67 Ohio St.3d 487, 493, 1993 Ohio 52, 620 N.E.2d 72. A determination as to which jury instructions are proper is a matter left to the sound discretion of the trial court. State v. Guster (1981), 66 Ohio St.2d 266, 271, 421 N.E.2d 157. A reviewing court will not reverse a conviction in a criminal case due to jury instructions unless it is found that the jury instructions amounted to prejudicial error. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph two of the syllabus. Columbus City Code ("C.C.C.") (A)(1)(d), which is substantially similar to its statutory counterpart, provides: "No person shall operate any vehicle * * * within this City, if, at the time of the operation, * * * the person has a concentration of eight-hundredths (0.08) of one (1) gram or more but less than seventeen-hundredths (0.17) of one (1) gram by weight of alcohol per two hundred ten (210) liters of the person's breath." 1

4 There is a consensus among Ohio courts that the language "at the time of operation" is not required to be included in a trial court's jury instructions for operating a vehicle under the influence ("OVI impaired") and operating a vehicle with a prohibited breath alcohol concentration ("OVI per se"). State v. Fisher, Ist Dist. No. C , 2009-Ohio-2258, at 31-33; State v. Adams, 3a Dist. No , 2007-Ohio-4932, at 25-30; Columbus v. Aleshire, 10`h Dist. No. 09AP-104, 2010 Ohio 2773, at No courts have held otherwise. In upholding OVI convictions where the language "at the time of operation" was not included in the jury instructions, Ohio courts have found that the trial courts properly instructed the jury on all the statutory elements of OVI, the law was clearly and fairly expressed, and the exact language requested by the defense was not required to be given. Id. As such, no prejudicial error occurred by any omission. Additionally, the Ohio Jury Instruction for an OVI per se offense does not include the language "at the time of operation." See 3-CR 711 OJI (A)(1)(b)-(j). Furthermore, C.C.C (D)(1), which is substantially similar to R.C (D)(1)(b), states in relevant part: "In 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 (3) hours of the time of the alleged violation." (Emphasis added:) The "may admit evidence" language in C.C.C (D)(1) refers to a trial court admitting evidence on the concentration of alcohol in a person's bodily substance subject to the state's compliance with Ohio's implied consent law or a blood or urine sample being obtained pursuant to a search warrant. See R.C (D)(1)(b). 2

5 It is unambiguous from the language in C.C.C (D)(1) that a breath sample acquired within three hours of the time of the alleged violation constitutes the defendant's breath alcohol concentration at the time of operation. Aleshire at Accordingly, the state is not required to present an expert witness in OVI per se cases to relate a chemical test back to the time of operation. Appellant's assertion that the state is required to do so is clearly contrary to the legislative intent under C.C.C (D)(1) and its statutory counterpart. Because no abuse of discretion occurred in this case as Appellant was not prejudiced, and no split of authority exists on this issue, this Court should decline to exercise jurisdiction. STATEMENT OF THE CASE AND FACTS On July 19, 2008, at approximately 1:40 a.m., Appellant was observed operating his motorcycle near Sloopy's bar by two "special duty" Columbus police officers, Sergeant Brian Kaylor and Officer Eric Houser. The officers, who were providing security for the bar and its parking lots, had just been advised by bar employees about a patron in the parking lot who had too much to drink. The bar employees tried to stop the patron from driving, and the patron was attempting to leave on his motorcycle. Upon witnessing Appellant travel the wrong direction on a posted one-way street and also nearly lose control of his motorcycle twice, Sergeant Kaylor ordered Appellant to stop. The officers spoke with Appellant and noticed a very strong odor of an alcoholic beverage about his person as well as slow, slurred speech. They also observed Appellant fumble with his wallet upon attempting to locate his driver's license. Appellant admitted to having a couple of drinks that night. Believing that Appellant was under the influence, the officers radioed for another officer to conduct field sobriety tests to determine 3

6 whether or not Appellant should be arrested for operating a vehicle under the influence of alcohol ("OVI impaired"). Officer Christopher Hogan arrived and spoke to Appellant who appeared to be very intoxicated. Officer Hogan detected a strong odor of an alcoholic beverage on Appellant's person and noticed that Appellant had difficulty standing upright. Officer Hogan administered standardized field sobriety tests which consisted of the one-leg stand, the walk-and-turn, and the horizontal gaze nystagmus tests. Appellant failed all three tests. Appellant was arrested and placed in the rear of the police wagon. While seated in the police wagon, Appellant vomited down the front of his shirt and on the floor of the wagon. Appellant was then transported to Columbus police headquarters where Officer Hogan administered a breathalyzer test using the BAC DataMaster breath testing machine. Appellant's breath test result was.138 grams of alcohol per 210 liters of breath. As a result, Appellant was charged with both OVI impaired and OVI per se. Appellant filed a motion to suppress. After holding a hearing on the matter, the trial court granted Appellant's motion to suppress with respect to the results of the horizontal gaze nystagmus test but denied all other aspects of the motion. The matter proceeded to jury trial. At the conclusion of the evidence, Appellant offered his own proposed jury instruction on the charge of operating a vehicle with a prohibited breath alcohol concentration: The Defendant is charged with operating a vehicle with a prohibited concentration of alcohol in his system. Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or about the 19th day of July, 2008, and in Columbus, Ohio, the Defendant, at the time of operation, had a concentration of eight hundredths of one gram or more but less than seventeen 4

7 hundredths of one gram by weight of alcohol per two hundred-ten liters of the Defendant's breath. The trial court declined to give Appellant's proposed jury instruction and instructed the jury on all of the essential elements of operating a vehicle with a prohibited breath alcohol concentration: The Government has accused Mr. Aleshire of operating a motor vehicle with a prohibited breath alcohol concentration of percent of one gram by weight of alcohol per 210 liters of breath. A person commits the offense of operating a motor vehicle with a prohibited concentration of alcohol in his breath when he has a concentration of eight-hundredths of 1 percent or more by weight of alcohol per 2101iters of his breath. Before you can find Mr. Aleshire guilty of the offense of operating a motor vehicle with a prohibited breath alcohol concentration, the Government's evidence must convince you, beyond a reasonable doubt, of each of the elements of the offense. The elements are as follows: That the offense took place in Franklin County, Ohio; that Mr. Aleshire was operating a motor vehicle; and that Mr. Aleshire had a concentration of eight-hundredths of 1 percent or more by weight of alcohol per 210 liters of his breath. The trial court defined the term "operate" and supplied additional jury instructions. The jury subsequently returned guilty verdicts on both offenses and the trial court also found Appellant guilty of traveling the wrong way on a one-way street. On appeal, Appellant raised five assignments of error which included the argument at issue. The Tenth District Court of Appeals held that the trial court did not abuse its discretion when it declined to give Appellant's proposed jury instruction. The matter was remanded for resentencing because the trial court sentenced Appellant on both OVI offenses as opposed to merging both offenses for purposes of sentencing and having the prosecution elect on one of the two OVI offenses upon which to sentence Appellant. 5

8 Reply to Appellant's Sole Proposition of Law The jury was properly instructed on all the elements of operating a vehicle with a prohibited breath alcohol concentration, and consequently, the trial court did not abuse its discretion by not providing the jury with Appellant's proposed jury instruction. The trial court did not abuse its discretion by refusing to include the language "at the time of operation" in its jury instructions for an OVI per se offense. The trial court instructed the jury on all the essential elements of the charge, and thus gave the jury a correct statement of the law. A trial court has the responsibility to give all jury instructions that are relevant and necessary in order for the jury to weigh the evidence and perform its duty as the factfinder. State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus. An instruction is proper when it adequately informs the jury of the law. State v. Conway, 10th Dist. No. 03AP-585, 2004 Ohio 1222, 24; Linden v. Bates Truck Lines, Inc. (1982), 4 Ohio App.3d 178, 181, 446 N.E.2d However, the trial court is not required to give requested instructions verbatim, as long as the instructions given contain a correct statement of the law and are appropriate to the facts of the case. State v. Lessin (1993), 67 Ohio St.3d 487, 493, 1993 Ohio 52, 620 N.E.2d 72. When reviewing a trial court's jury instruction, the proper standard of review is whether the trial court's refusal to give a requested instruction was an abuse of discretion under the facts and circumstances of the case. State v. Gover, 10," Dist. No. 05AP-1034, 2006 Ohio 4338, 22, citing State v. Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443. A reviewing court will not reverse a conviction in a criminal case due to jury instructions, unless it finds that the jury instructions amount to prejudicial error. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph two of the syllabus.

9 When reviewing a specific challenged instruction on appeal, the instruction should not be judged in isolation, but instead, within the context of the overall charge. State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772, paragraph four of the syllabus. Ohio courts have held that the law has been clearly and fairly expressed and a defendant has not been prejudiced when the language "at the time of operation" is not included in the jury instructions for an OVI impaired or OVI per se offense. Fisher at 31-33; Adams at 25-30; Aleshire at No court has held otherwise. In Fisher, the defendant was convicted of driving a vehicle with a prohibited breath alcohol content. The defendant argued that the trial court failed to properly instruct the jury because it failed to inform the jury that the defendant had to have a prohibited breath-alcohol content "at the time of operation." The First District Court of Appeals rejected this argument and held that the trial court properly instructed the jury on all the statutory elements of driving with a prohibited breath-alcohol content under R.C (A)(1)(d). The trial court had instructed the jury that in order to find the defendant guilty, it had to find that he had operated the vehicle on the day in question with a prohibited breath-alcohol content. Because the defendant was not prejudiced by any omission, the court affirmed the defendant's conviction. Id. at 33. The Third District Court of Appeals reached a similar result in Adams. In Adams, the trial court denied the defendant's proposed jury instruction on an OVI impaired offense which read as follows: "[O]n or about October 11, 2005 in Crawford County, Ohio the defendant did operate a vehicle and while-and at the time of operation was under the influence of alcohol." Id. at 28. Instead, the trial court instructed the jury that before the defendant could be found guilty, the State must prove beyond a reasonable 7

10 doubt that on or about October 11, 2005 in Crawford County, Ohio, the defendant did operate a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. Id. The trial court did not include the "at the time of operation" language. In affirming the defendant's conviction, the Third District Court of Appeals held that the jury instruction given by the trial court, along with the other jury instructions, clearly and fairly expressed the law. The trial court gave the jury an instruction on all of the elements of the offense. Additionally, although the jury instruction given by the trial court differed from the instruction requested by the defense, the trial court was not required to give the jury instruction in the exact language requested by the defense. Id. at As in Fisher and Adams, the trial court in this case properly instructed the jury on all of the elements of the offense of operating a vehicle with a prohibited breath alcohol concentration as provided in C.C.C (A)(1)(d). The trial court was not required to give Appellant's requested jury instructions verbatim. See Lessin at 493. Also, no Ohio courts have held that a defendant is prejudiced if the trial court omits the language "at the time of operation" from its jury instructions on an OVI offense. Furthermore, the Ohio Jury Instruction for an OVI per se offense does not include the language "at the time of operation." See 3-CR 711 OJI (A)(1)(b)-(j). Contrary to Appellant's argument, the prosecution is not required to have an expert witness testify in OVI per se cases as to what a person's blood alcohol level is at the time of operation. The legislative mandate in C.C.C (D)(1) and its statutory counterpart, R.C (D)(1)(b) clearly and unambiguously states that a breath sample acquired within three hours of the time of the alleged violation constitutes the defendant's breath alcohol concentration at the time of operation. Because no abuse 8

11 of discretion occurred as the trial court adequately informed the jury of the law, this Court should decline to exercise jurisdiction. CONCLUSION Appellant does not present unique issues of public or great general interest and does not raise a substantial constitutional question. The law is well-settled on this matter, and there is no split in authority. Accordingly, this Court should decline to exercise jurisdiction. Respectfully submitted, CITY OF COLUMBUS DEPARTMENT OF LAW RICHARD C. PFEIFFER, JR. ( ) CITY ATTORNEY LARA N. BAKER ( ) CITY PROSECUTOR MELANIE R. TOBIAS ( ) DIRECTOR - APPELLATE UNIT 04 N ORL/' AHRONI ( ) ASSI TANT CITY PROSECUTOR 375 South High Street, 17`h Floor Columbus, Ohio Telephone: (614) COUNSEL FOR PLAINTIFF- APPELLEE

12 CERTIFICATE OF SERVICE This is to certify that a true copy of the foregoing Memorandum in Opposition of Jurisdiction was mailed by regular U.S. Mail to Jon J. Saia, Counsel for Defendant- Appellant, 713 South Front Street, Columbus, Ohio 43206, this 26th day of August, Orly Poni ( ) Assis ant City Prosecutor 10