[Cite as State v. Willett,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : Case No. 11CA3260 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : HARRY L. WILLETT, : : RELEASED 05/16/12 Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Timothy Young, Ohio Public Defender, and Ben A. Rainsberger, Assistant Ohio Public Defender, Chillicothe, Ohio, for appellant.

Toni L. Eddy, Chillicothe Director of Law, Chillicothe, Ohio, for appellee. ______________________________________________________________________ Harsha, J.

{¶1} Harry Willett appeals his conviction for operating a vehicle under the

influence (OVI). He argues because the state failed to lay a proper foundation for the

trooper’s testimony regarding the field sobriety tests, the court erred by allowing his

testimony. However, Willett’s trial counsel did not object at trial to the trooper’s

testimony on the basis of foundation, so we will apply a plain error analysis. And even if

we exclude the trooper’s testimony concerning the field sobriety test results, the trooper

was still entitled under Evid.R. 701 to testify about what he observed as he gave the

test, e.g. whether Willett was unsteady or swayed, failed to follow instructions, etc.

Because we find exclusion of the testimony concerning the field sobriety test results

would not have changed the outcome of the trial in light of the totality of the evidence,

we find no plain error. Ross App. No. 11CA3260 2

{¶2} Willett also claims that because the state failed to lay the proper

foundation for the trooper’s testimony by showing substantial compliance with the

testing standards, the only way Willett could testify was as an expert. However, the

Supreme Court of Ohio has determined an officer can testify about the defendant’s

performance on nonscientific field sobriety tests as a layperson. Thus, Willett’s claim

that the state’s failure to disclose the trooper’s report required the court to preclude the

trooper from testifying under the rules of discovery is meritless.

I. FACTS

{¶3} Captain Vessels of the Ohio State Patrol initially stopped Harry Willett for

a traffic violation; Trooper Wilson, who arrived subsequently to complete the

investigation, asked Willett to perform several field sobriety tests. Based on these

tests, Trooper Wilson arrested Willett and charged him with operating a vehicle under

the influence (OVI), in violation of R.C. 4511.19(A)(1)(a).

{¶4} Willett pleaded not guilty and the matter proceeded to a jury trial. On the

day of trial, the prosecution disclosed to the court that an “impaired driver report” had

been omitted from discovery submitted to the defense. Based on this omission,

defense counsel objected to any testimony by Trooper Willett regarding the field

sobriety tests. He argued that the trooper was testifying as an expert witness and under

Crim.R. 16 his testimony should be precluded because the information regarding the

tests was not disclosed to the defense prior to trial. Before the state called any

witnesses, defense counsel received the impaired driver report and again renewed his

objection but did not seek a continuance. Instead counsel renewed the request to Ross App. No. 11CA3260 3

prohibit Trooper Wilson from testifying about the field sobriety tests. The trial court

overruled the objection and allowed Trooper Wilson to testify about them.

{¶5} Trooper Wilson testified that on the night in question, he responded to a

traffic stop involving Willett. He stated that when he arrived at the scene Willett had

“bloodshot, glassy eyes” and smelled strongly of alcohol. Trooper Wilson then

questioned Willett, who admitted that he had “three beers and one shot” over a four

hour period of time. Based on his observations and Willett’s admission, Trooper Wilson

asked him to perform three field sobriety tests: 1.) the nystagmus test; 2.) the one-leg

stand; and 3.) the walk-and-turn.

{¶6} Trooper Wilson testified very briefly about his training and experience.

Trooper Wilson stated he has worked as a trooper for the highway patrol since 2007.

He stated that he received “ADAPT” training, which is a course that provides instruction

on the National Highway Traffic Safety Administration (NHTSA) requirements in

detecting impaired drivers. However, Wilson did not discuss specific NHTSA standards

and the state did not offer a copy of them into evidence. Trooper Wilson then made

some general comments about how he routinely conducts the tests. Defense counsel

objected to the generalized description and Wilson resumed by making specific

reference to how he instructed Willett.

{¶7} Wilson testified that he conducted the horizontal gaze nystagmus test in

front of his cruiser and Willett was “instructed to hold his head still. He was asked to

follow the tip of my pen with his eyes and his eyes only. I hold the tip of the pen 12 to

15 inches in front of his face.” He explained that he then moved the pen across

Willett’s field of vision, left to right, and looked for “lack of smooth pursuit,” where the Ross App. No. 11CA3260 4

eyes involuntarily jerk and are unable to follow the pen in a smooth manner. Trooper

Wilson testified that Willett showed a “lack of smooth pursuit in both eyes.”

{¶8} Trooper Wilson also performed the distinct sustained nystagmus, which he

described as holding a stimulus at a 45 degree angle from the eyes, moving it to the left

or right, and looking for four seconds for an involuntary jerking of the eye at that angle.

Trooper Wilson testified that he again saw the involuntary jerking in both of Willett’s

eyes. He also conducted a vertical nystagmus, but testified that he did not observe any

abnormalities in Willett’s eyes. Finally, Trooper Wilson performed a test where he

moves his pen in a circle and at the center he moves the pen towards the person’s face

and looks for tracking in their eyes. He testified that Willett did not show any indicators

on this test either.

{¶9} Trooper Wilson then described the one-leg stand test. He testified that he

first told Willett to stand with his feet together and his hands at his sides. Although the

trooper testified about the results of this test, he did not further describe how Wilson

performed the one-leg stand test.

{¶10} Trooper Wilson then testified about the walk-and-turn test. He indicated

that he instructed Willett to “stand with his right foot in front of his left, touching heel to

toe, and his hands to his side.” He then stated that he demonstrated the test and asked

Willett “to walk nine steps forward and nine steps back touching heel to toe on each

step keeping his hands to his side while counting out loud during the test.” He testified

that he observed six out of eight clues of intoxication while observing Willett perform this

test. Based on his observations of these field sobriety tests, Trooper Wilson testified

that he determined that Willett was impaired and placed him under arrest for OVI. Ross App. No. 11CA3260 5

{¶11} At no point did defense counsel object to Wilson’s testimony based upon

a lack of proper foundation due to Wilson’s failure to substantially comply with NHTSA

guidelines. See R.C. 4511.19(D)(4)(b) (requiring clear and convincing evidence of

substantial compliance with the NHTSA requirements.)

{¶12} On cross-examination, Trooper Wilson testified that he performed the

standardized field sobriety tests as he was trained. However, he admitted that he did

not ask if Willett had any problems with his eyes before performing the horizontal gaze

nystagmus test and also failed to ask him if he had any back or leg problems before

performing the one-leg stand and walk-and-turn tests. It appears that the NHTSA

guidelines require these inquiries.

{¶13} The jury found Willett guilty of OVI and he was sentenced by the court.

This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶14} Willett presents two assignments of error for our review:

{¶15} “THE COURT BELOW ERRED BY ALLOWING TESTIMONY OF FIELD

SOBRIETY TESTS WITHOUT THE STATE LAYING PROPER FOUNDATION AS

REQUIRED BY R.C. 4511.19(D)(4)(b)(i).”

{¶16} “THE COURT BELOW ERRED BY ALLOWING TROOPER WILSON TO

TESTIFY AS AN EXPERT WITNESS WITHOUT DISCLOSURE REQUIRED BY

CRIM.R. 16(K).”

III. TROOPER WILSON’S TESTIMONY

{¶17} Willett combines his argument for both assignments of error. However,

App.R. 16(A)(7) requires that an appellant argue each assignment of error separately Ross App. No. 11CA3260 6

and failure to do so is grounds to disregard them. See App.R. 12(A)(2). Nevertheless,

we will consider the merits of Willett’s arguments.

{¶18} First we address the state’s argument that because Willett did not file a

motion to suppress prior to trial challenging the issue of whether the field sobriety tests

were conducted in substantial compliance with the testing standards, he was waived

this argument on appeal. Because the state failed to raise this issue before the trial

court, we will not entertain it for the first time on appeal. And, due to the considerable

confusion between whether using a motion to suppress or a motion in limine is the

appropriate procedure, see Weiler & Weiler, Ohio Driving Under the Influence Law,

Section 9:8 (2011-1012 Ed.), we prefer to address Willett’s argument on its merits.

{¶19} Here, Willett’s trial counsel failed to object to Trooper Wilson’s testimony

at trial on the basis that the state failed to establish substantial compliance with testing

standards. Evid.R. 103(A)(1) provides that an “[e]rror may not be predicated upon a

ruling which admits * * * evidence unless a substantial right of the party is affected and *

* * a timely objection or motion appears of record stating the specific ground of

objection, if the specific ground was not apparent from the context[.]” Although our

review of the transcript reveals that trial counsel objected numerous times during

Trooper Wilson’s testimony about the field sobriety testing, he either did not state the

basis for objection or referred to Wilson testifying as an expert and the prohibition set

forth in Crim.R. 16(K), i.e. he did not object on the basis of foundation/lack of substantial

compliance with the testing standards. Because Willett’s counsel did not object on the

specific ground that he raises here, we need only determine whether the admission of Ross App. No. 11CA3260 7

Trooper Wilson’s testimony amounted to plain error. See Evid.R. 103(A)(1). See also

State v. Rinehart, 4th Dist. No. 07CA2983,

, ¶ 18.

A. Plain Error

{¶20} For plain error to exist there must be a plain or obvious error that affects

“substantial rights,” which the Supreme Court of Ohio has interpreted to mean “that the

trial court’s error must have affected the outcome of the trial.” State v. Barnes,

,

(2002). See, also, Rinehart, supra, at ¶ 18. In addition,

we take notice of plain error “with the utmost caution, under exceptional circumstances,

and only to prevent a manifest miscarriage of justice.” Rinehart, supra, at ¶ 18, citing

State v. Gardner,

,

,

, at ¶ 78.

Courts should notice plain error only if the error seriously affects the fairness, integrity or

public reputation of judicial proceedings. Rinehart, supra, at ¶ 18. After reviewing the

record, we cannot say that the outcome would have been different had the trial court

excluded Trooper Wilson’s testimony concerning the field sobriety tests results.

{¶21} In State v. Schmitt,

,

,

,

the Supreme Court of Ohio noted that virtually any lay witness, including a police officer,

may testify about whether an individual appears intoxicated. Id. at ¶ 12. The court

indicated there is no reason to treat an officer’s testimony concerning a driver’s

performance on nonscientific field tests any differently from his observations on other

indications of intoxication like slurred speech, bloodshot eyes and the odor of alcohol.

Id. at ¶ 14. The court went on to conclude that even when the final results of a field

sobriety test must be excluded at trial because the test was not administered in

compliance with standardized testing procedures, the officer may testify as a lay witness Ross App. No. 11CA3260 8

under Evid.R. 701 about the officer’s observation of the defendant’s performance. Id. at

syllabus, ¶ 15. Thus the results, i.e. whether the defendant passed or failed the specific

test are not admissible without substantial compliance with NHTSA requirements.

However, observations like the defendant couldn’t follow instructions or stumbled during

a test are admissible regardless of the lack of compliance. See Columbus v. Bickis,

10th Dist. No. 09AP-898,

, ¶ 16.

{¶22} Before Trooper Wilson testified, Captain Patrick Vessels of the Ohio State

Highway patrol testified that he observed Willett attempt to make a left turn into the front

yard of a home where there was no driveway. Willett then stopped in the middle of the

road, backed up and continued driving down the road. After Captain Vessels pulled him

over, he noticed a strong odor of alcohol coming from the vehicle and Willett’s face was

reddish and his eyes were bloodshot. The captain then testified that after Willett exited

the car, he noticed “the odor of an alcoholic beverage on his person.”

{¶23} Captain Vessels also testified that he watched Trooper Wilson administer

the field sobriety tests to Willett. Without objection Vessels stated he agreed with

Trooper Wilson’s determination that Willett was operating a motor vehicle under the

influence of alcohol based upon his observation of Willett and his driving.

{¶24} Trooper Wilson testified that Willett admitted to him that he had “three

beers and one shot.” Additionally, Wilson stated that Willett’s eyes were bloodshot and

glassy and that he smelled strongly of alcohol. And the state introduced a video

showing Willett’s performance of the field sobriety tests without any objection from the

defense. Our review of the video indicates that during the one-leg stand test Willett lost Ross App. No. 11CA3260 9

his balance and put his leg down. Additionally, during the walk-and-turn test, he started

the test then stopped and also stumbled while turning around.

{¶25} Willett himself also testified that he was at a bar from about 4:00 p.m. to

10:00 p.m. on the night in question. He also confirmed that he had “three, maybe four

beers” and “a shot” over a four hour period before leaving the bar to drive his friends

home.

{¶26} Based on the totality of the evidence, this is not one of those exceptional

circumstances that result in a manifest miscarriage of justice. Willett has not shown that

the outcome of trial clearly would have been otherwise had Wilson’s testimony about

the field sobriety test results been excluded. Therefore, we overrule his first

assignment of error.

IV. EXPERT TESTIMONY

{¶27} Willett’s second assignment of error is somewhat unique. He argues that

in the absence of direct evidence that Trooper Wilson substantially complied with the

NHTSA testing standards when he performed the field sobriety tests, Wilson had to

testify as an expert witness because he was offering an opinion on a matter beyond the

knowledge of a laywitness. And consequently, because the state did not provide a copy

of his written report as required by Crim.R. 16(K), the trial court should have precluded

his testimony. Because Willett’s trial counsel objected to Trooper’s Wilson’s testimony

at trial on this basis, we will briefly address the merits of his argument.

{¶28} Crim.R. 16(K) states: “An expert witness for either side shall prepare a

written report summarizing the expert witness’s testimony, findings, analysis,

conclusions, or opinion, and shall include a summary of the expert’s qualifications. The Ross App. No. 11CA3260 10

written report and summary of qualifications shall be subject to disclosure under this

rule no later than twenty-one days prior to trial, which period may be modified by the

court for good cause shown, which does not prejudice any other party. Failure to

disclose the written report to opposing counsel shall preclude the expert’s testimony at

trial.”

{¶29} We agree that had Trooper Wilson testified as an expert, his testimony

might have been precluded under Crim.R. 16(K).1 However, the record shows that the

state did not offer Trooper Wilson as an expert witness, nor was he qualified as one by

the trial court. Moreover, Willett does not cite any case law, and we can find none,

supporting his claim that when the state fails to supply the proper foundation for a

trooper’s testimony about field sobriety testing that he becomes an expert witness. To

the contrary, as we already noted the Supreme Court of Ohio has concluded that an

officer’s testimony regarding the defendant’s performance on nonscientific field sobriety

tests is admissible as lay testimony under Evid.R. 701 regardless of whether the tests

were administered in substantial compliance with NHTSA standards. Schmitt,

,

,

. Bickis, 10th Dist. No. 09AP-898,

, ¶ 16. Therefore, we conclude Trooper Wilson was not testifying as an

expert; accordingly, Crim.R. 16(K) did not require exclusion of his testimony. Because

any error in permitting him to testify about the test results would be harmless beyond a

reasonable doubt in light of Wilson’s observations, the testimony from Captain Vessels,

and Willett’s admissions, we overrule this assignment of error.

1 Technically, this is not a case of nondisclosure, but rather belated disclosure. The rule would seem to afford the trial court some discretion in fashioning a sanction here, especially in light of the absence of a request to continue the trial. Ross App. No. 11CA3260 11

{¶30} Thus, we overrule both of Willett’s assignments of error and affirm his OVI

conviction.

JUDGMENT AFFIRMED. Ross App. No. 11CA3260 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Chillicothe Municipal Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.

For the Court

BY: ____________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.