[Cite as State v. Kilbane,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99485

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TERRENCE KILBANE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-11-551599-A

BEFORE: Boyle, A.J., E.T. Gallagher, J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: March 27, 2014 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender BY: John T. Martin Assistant Public Defender 310 Lakeside Avenue Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Melissa Riley James M. Price Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, A.J.:

{¶1} Defendant-appellant, Terrence Kilbane (“Kilbane”), appeals his driving under

the influence of alcohol (“DUI”) conviction. Finding no merit to the appeal, we affirm.

Procedural History and Facts

{¶2} Kilbane was charged with two counts of DUI. Count 1 alleged that Kilbane

operated a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a).

Count 2 alleged that Kilbane, while having a blood alcohol content in excess of the legal

limit, operated a vehicle in violation of R.C. 4511.19(A)(1)(d). Both counts carried

furthermore specifications alleging that Kilbane had previously been convicted of a

felony DUI. The furthermore specifications elevated the DUI charges to third-degree

felonies.

{¶3} Officer Matthew Rancourt (“Rancourt”) of the Rocky River Police

Department testified at trial that when he stopped Kilbane for failure to stop at a stop

sign, he noticed that his speech was slurred, his eyes were glassy, and his breath smelled

of alcohol. At Rancourt’s request, Kilbane removed a jacket from the front passenger

seat and uncovered eight beer bottles. One of the bottles of beer spilled onto the front

passenger seat.

{¶4} Officers Kimberly Forkins (“Forkins”) and Nicholas Rusinko (“Rusinko”),

who responded to Rancourt’s call for backup, testified that they were present when

Rancourt administered three field-sobriety tests. According to these witnesses, Kilbane

failed all three field sobriety tests, and Rancourt arrested Kilbane for DUI. Rusinko conducted an inventory search of Kilbane’s car and discovered empty and partially filled

containers of alcohol in the trunk and backseat of the vehicle.

{¶5} At 6:20 p.m., after Kilbane was booked in the Rocky River jail, Officer

Forkins used a BAC Datamaster (“Datamaster” or “breathalyzer”) to test Kilbane’s blood

alcohol content. The results indicated that Kilbane’s blood alcohol content was 0.15.

During questioning, Kilbane informed Forkins that he had no physical defects or

illnesses, did not take any medication, and had eight hours of sleep the night before the

stop.

{¶6} Forkins testified that the Datamaster must be checked once every seven days

to ensure that it is working properly. An officer other than Forkins performed the routine

checks and documented them using a standard checklist. The Datamaster itself also prints

a report of the same information. Without objection, Forkins testified to the contents of

these records, which indicated that the Datamaster had been checked and found to be in

proper order two days before Kilbane’s arrest.

{¶7} The jury returned guilty verdicts on both counts charged in the indictment.

The jury also made a “further finding” on each verdict form that Kilbane had previously

been convicted of DUI in Cuyahoga County Common Pleas Court. The court sentenced

Kilbane to 90 days in prison, imposed a $1,350 fine, ordered mandatory alcohol and drug

addiction treatment programs, and suspended his license for three years. On motion, the

court later amended the prison term to 60 days in jail. Kilbane now appeals, raising the

following four assignments of error: I. The convictions for count one and two are for misdemeanors and not for third degree felonies because the verdict forms do not indicate that the defendant was previously convicted of a felony violation of R.C. 4511.19.

II. The evidence was insufficient to sustain a conviction in count one because the evidence failed to prove beyond a reasonable doubt that Mr. Kilbane’s driving was impaired by the consumption of alcohol.

III. The trial court plainly erred in allowing the testimony from a police officer about the documents relating to the calibration of the breathalyzer by another police officer.

IV. As to count two, Mr. Kilbane received the ineffective assistance of counsel.

Third-Degree Felony

{¶8} In the first assignment of error, Kilbane argues he should have been

convicted of misdemeanors instead of third-degree felonies because the verdict forms did

not indicate that he had previously been convicted of felony DUI. He concedes the

verdict forms refer to a prior DUI conviction but contends that because they fail to

identify the prior conviction as a felony, they fail to comply with the enhanced penalty

requirements of R.C. 2945.75 for certain offenses.

{¶9} R.C. 4511.19(G) provides enhanced penalties for repeat DUI offenders.

Generally, a defendant found guilty of violating R.C. 4511.19(A)(1)(a) or

4511.19(A)(1)(d) is guilty of a first-degree misdemeanor. However, R.C.

4511.19(G)(1)(d) escalates the offense to a fourth-degree felony if the offender has

previously been convicted of a certain number of DUIs within a certain “look back period.” If the offender has previously been convicted of a felony DUI, a subsequent

DUI conviction is a third-degree felony, “regardless of when the violation and the

conviction or guilty plea occurred.” R.C. 4511.19(G)(1)(e).

{¶10} Where the penalty for a particular crime is enhanced by virtue of a prior

conviction of the same offense, the prior offense is an essential element of the subsequent

offense and must be proved by the state. State v. Allen,

,

(1987). Since a prior conviction is an essential element of the subsequent offense, as

opposed to a sentencing enhancement, R.C. 2945.75(A) requires that the factfinder make

a separate finding of the offense- aggravating element. R.C. 2945.75(A) provides in

relevant part:

When the presence of one or more additional elements makes an offense one of more serious degree:

***

(2) A guilty verdict shall state either the degree of the offense of which the

offender is found guilty, or that such additional element or elements are

present. Otherwise, a guilty verdict constitutes a finding of guilty of the

least degree of the offense charged.

{¶11} In State v. Pelfrey,

,

,

, the

Ohio Supreme Court held:

Pursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense.

at syllabus.

{¶12} In Pelfrey, the defendant was charged with tampering with records. The

offense would have constituted a misdemeanor under R.C. 2913.42(B)(2)(a), except that

the records at issue were governmental records, “a circumstance that elevate[d] the crime

to a third-degree felony under R.C. 2913.42(B)(4).” Id. at ¶ 13. Neither the verdict

form nor the trial court’s verdict entry mentioned the degree of the offense. Id. They

also did not mention that the records involved were governmental records. Id. Instead,

the verdict forms simply referred to the tampering with records offense “as charged in the

indictment.” Under these circumstances, the court held that Pelfrey could only be

convicted of a misdemeanor. Reference to the indictment was not sufficient to comply

with R.C. 2945.75(A). Id. at ¶ 14.

{¶13} In this case, both verdict forms contained “further findings,” which stated:

We, the Jury in this case, find the Defendant, Terrence Kilbane, guilty of

Operating Under the Influence, as charged in count one of the Indictment,

and we further find that Defendant was previously convicted of Driving

While Under the Influence, to-wit: the said Terrence Kilbane, with counsel,

on or about the 22nd day of May, 2003, in the Court of Common Pleas,

Cuyahoga County, Ohio, Case Number CR-431408, having been convicted

of the crime of Driving Under the Influence, in violation of Revised Code

Section 4511.19, of the State of Ohio. {¶14} Pelfrey makes clear that, in the absence of the degree of the offense that the

defendant is convicted, the jury verdict form must include “a statement that an

aggravating element has been found to justify convicting a defendant of a greater degree

of a criminal offense.” This is the express requirement of R.C. 2945.75(A). In Pelfrey,

the court recognized that failure to strictly comply with R.C. 2945.75(A) requires a

reviewing court to treat the guilty verdict as a “‘finding of guilty of the least degree of the

offense charged.’” Id. at ¶ 13, quoting R.C. 2945.75(A)(2).

{¶15} The verdict form that was at issue in Pelfrey is distinctively different than

the ones at issue in this case. In Pelfrey, aside from the verdict form not mentioning the

degree of the offense at issue, the form was completely silent as to the aggravating

element, i.e., that the tampering with records involved governmental records. This is not

at issue in this case. Here, the jury verdict forms contain a statement of the additional

element to justify convicting Kilbane of the greater degree of the offense.

{¶16} The verdict forms at issue contain “further findings” that expressly required

the jury to find that the aggravating element was present. Although the verdict forms do

not use the word “felony” to describe the past DUI conviction, the parties specifically

chose to refer to the prior felony DUI by its specific case number and Kilbane’s date of

conviction. Notably, Kilbane does not even dispute that Case No. CR-02-431408 was a

felony conviction of DUI — a fact that the jury was expressly instructed upon and

presumed to have followed. The use of the specific case number in this case was synonymous with referring to the case more broadly as a felony, and therefore, the verdict

forms contain the necessary degree-raising element to comply with R.C. 2945.75(A)(2).

{¶17} Further, while Pelfrey is the seminal case on the application of R.C.

2945.75(A)(2), the Ohio Supreme Court has subsequently provided us with conflicting

guidance on this statute. In Pelfrey, despite the defendant having not raised any issue

related to the verdict forms during the trial court proceedings, the court did not engage in

a plain-error analysis. The holding in Pelfrey implies that failure to strictly comply with

R.C. 2945.75(A)(2) always constitutes plain error. Five years later, however, the Ohio

Supreme Court in State v. Eafford,

,

,

, reversed this court for strictly applying Pelfrey to a challenge of a jury verdict form

under R.C. 2945.75(A), and found that the alleged defect in the jury verdict was not plain

error based on other circumstances during the proceedings. Courts since then, including

this court, have been trying to reconcile the conflicting opinions of Pelfrey and Eafford.

See, e.g., State v. Melton, 8th Dist. Cuyahoga No. 97675,

(recognizing a

distinction between the plain-error doctrine in Eafford and Pelfrey). And while the Ohio

Supreme Court arguably abandoned its reasoning in Eafford in its recent decision of State

v. McDonald,

,

,

, the court still did not

expressly overrule Eafford, which appears to be binding precedent.

{¶18} Here, Kilbane never objected to the jury verdict forms at trial, and therefore

has forfeited all but plain error. “Notice of plain error under Crim.R. 52(B) is to be taken

with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

,

(1978),

paragraph three of the syllabus. Crim.R. 52(B) places the following three limitations on

a reviewing court’s decision to correct an error despite the absence of a timely objection

at trial: (1) there must be error; (2) the error must be an “obvious” defect in the trial

proceedings; and (3) the error must have affected “substantial rights.” State v. Barnes,

,

,

. The Ohio Supreme Court has

interpreted the third limitation of the rule “to mean that the trial court’s error must have

affected the outcome of the trial.”

In other words, plain error requires that “but for

the error, the outcome of the trial would clearly have been otherwise.” State v. Biros,

,

(1997).

{¶19} Even if we agreed with Kilbane that the jury verdict forms were defective,

they do not rise to plain error. First, the absence of the single word “felony” when the

parties specifically identified the prior felony DUI conviction by its specific case number

does not constitute an obvious error. Second, there is no basis to conclude that the

inclusion of the single word “felony” would have changed the outcome of the

proceedings. The record reveals that Kilbane admitted at trial that his prior conviction

was a felony violation of R.C. 4511.19, the parties stipulated to this same fact, and the

jury was expressly instructed as to the felony nature of Kilbane’s prior DUI conviction.

The jury’s finding in this case leaves no doubt that the jury found that Kilbane had

previously been convicted of a felony DUI even in the absence of the word “felony” on

the verdict forms. {¶20} The first assignment of error is overruled.

Sufficiency of the Evidence

{¶21} In the second assignment or error, Kilbane argues there was insufficient

evidence to sustain a conviction in Count 1 because the evidence failed to prove that his

driving was impaired by the consumption of alcohol. He contends there were no indicia

of bad driving other than Kilbane’s failure to stop at a stop sign and that rolling through a

stop sign, by itself, does not indicate impairment.

{¶22} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is

insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency

requires a determination of whether the prosecution met its burden of production at trial.

State v. Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 12. The relevant

inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Jenks,

,

(1991),

paragraph two of the syllabus.

{¶23} In Count 1 of the indictment, Kilbane was charged with DUI in violation of

R.C. 4511.19(A)(1)(a), which states, in relevant part, that “[n]o person shall operate any

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

alcohol.” In DUI prosecutions, the state is not required to prove that the defendant’s

driving was indicative of impairment. State v. Hess, 9th Dist. Wayne No. 12CA0064,

. Proof of impaired driving ability is sufficient.

To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol,

glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a

person’s physical and mental ability to drive was impaired. State v. Clark, 8th Dist.

Cuyahoga No. 88731,

.

{¶24} Rancourt testified that he immediately noticed Kilbane’s speech was slurred,

his eyes were glassy, and his breath smelled of alcohol. Kilbane admitted drinking “two

beers.” Rancourt also testified that the results of a nystagmus test, a one-legged stand

test, and the walk-and-turn test indicated that Kilbane was “under the influence.” In the

nystagmus test, Rancourt observed involuntary movements in both of Kilbane’s eyes.

Kilbane also had difficulty balancing during the one-legged stand test and the

walk-and-turn test. Rancourt described Kilbane’s condition as follows:

Q: What factors did you take into consideration in your determination to arrest Mr. Kilbane for this crime?

A: A couple of different factors, of course. First, the observation of his stop or attempt to stop at the stop sign. Second would be the fact that he was attempting to conceal something under his jacket that later turned out to be an open container of alcohol. Third, the fact that he stated he had been drinking. I also took into consideration the odor of alcoholic beverages on his breath, his glassy bloodshot eyes, slurred speech. And then I looked for specific indicators while I administered the field sobriety tests.

{¶25} With respect to the walk and turn test, Rancourt explained:

While giving Mr. Kilbane the instructions, he was failing to maintain his balance. He used his arms for balance, meaning he raised his arms up, against more than six inches. He took the incorrect number of steps, and he also lost his balance or turned incorrectly, more so lose his balance, but instead of taking the pivot type steps that I showed just a minute ago, he began walking at one point, even walking backwards in a — I don’t know if you would call it a 180 degrees, and then turned again and began walking. Evidence of Kilbane’s performance on the field sobriety tests together with his admission

that he had been drinking, his slurred speech and glassy eyes, and the fact that he failed to

stop at a stop sign was sufficient to prove that Kilbane was impaired while operating his

motor vehicle.

{¶26} Therefore, the second assignment of error is overruled.

Right of Confrontation and Hearsay

{¶27} In the third assignment of error, Kilbane argues the trial court committed

plain error when it allowed Forkins to testify from certain documents relating to the

calibration of the breathalyzer that were prepared by another police officer. He contends

this testimony constituted inadmissible hearsay and violated his constitutional right of

confrontation.

{¶28} Kilbane failed to raise this issue at trial, and therefore waived all but plain

error. See Crim.R. 52(B).

{¶29} Hearsay is an out of court statement offered to prove the truth of the matter

asserted. Evid.R. 801(C). Whenever the state seeks to introduce hearsay into a criminal

proceeding, the court must determine not only whether the evidence fits within an

exception, but also whether the introduction of such evidence offends an accused’s right

to confront witnesses against him.1 In Crawford v. Washington,

,

The Sixth Amendment to the United States Constitution states: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” 1354,

(2004), the United States Supreme Court held that the

Confrontation Clause applies to exclude “testimonial” as opposed to “non-testimonial”

hearsay.

at paragraph (a) of the syllabus.

{¶30} Although the Crawford court did not define “testimonial,” it discussed three

possible definitions of that term, which include (1) ex parte in-court testimony or its

functional equivalent, such as affidavits and prior testimony that the defendant was

unable to cross-examine, or pretrial statements that declarants would reasonably be

expected to be used in a prosecution; (2) extrajudicial statements contained in formal

testimonial materials such as depositions, prior testimony, or confessions; and (3)

statements made under circumstances that would lead an objective witness to believe the

statement would be available for use at a later trial. Id. at ¶ 51-52.

{¶31} Generally, statements contained in documents constitute inadmissible

hearsay unless the author of the document is available to testify about them or the

document qualifies as an exception to the hearsay rule. Evid.R. 803; State v. Cassano,

8th Dist. Cuyahoga No. 97228,

. As applicable here, the

business records exception excepts business records from exclusion at trial “if they are

made in the course of a regularly conducted business activity because the courts presume

that such records are trustworthy given the self-interest to be served by the accuracy of

such entries.”

citing Weis v. Weis,

,

(1947).

{¶32} To qualify for the business records exception, a record must meet the

following criteria: (1) the record must be one recorded regularly in a regularly conducted activity; (2) a person with knowledge of the act, event, or condition recorded must have

made the record; (3) it must have been recorded at or near the time of the act, event, or

condition; and (4) the party who seeks to introduce the record must lay a foundation

through testimony of the record custodian or some other qualified witness. State v.

Davis,

,

,

, ¶ 171. Thus, the rationale

underlying the business records exception to the hearsay rule is that

the inherent reliability of business records is “supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”

United States v. Wells,

(5th Cir. 2001), quoting Fed.R.Evid. 803(6),

Notes of Advisory Committee on Proposed Rules.

{¶33} In Crawford,

,

, the court held that business

records are generally not testimonial, and therefore are not subject to exclusion under the

Confrontation Clause.

. In Melendez-Diaz v. Massachusetts,

,

,

(2009), the United States Supreme Court held that

business records are

generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.

. However, the Melendez-Diaz court further held that analysts’ affidavits

identifying certain evidence as cocaine could not be admitted at trial absent confrontation

because they were prepared for use in trial against the defendant.

. {¶34} In this case, it was foreseeable that the calibration records for the

breathalyzer could be used for trial. However, these records were not generated

specifically for use in trial against Kilbane or any other particular defendant. They are

simply periodic calibration and maintenance records that were updated two days before

Kilbane was arrested. Forkins testified that the Datamaster must be checked once every

seven days to ensure that it is working properly and that records of these “checks” are

“kept in the normal course of the Rocky River Police Department’s business.” While the

results of Kilbane’s breathalyzer test would be testimonial because they were obtained for

purposes of prosecution, records of routine maintenance of the breathalyzer are not

testimonial.2

{¶35} Accordingly, we overrule the third assignment of error.

Ineffective Assistance of Counsel

{¶36} In the fourth assignment of error, Kilbane argues he was denied the effective

assistance of counsel because his trial counsel failed to object to the admission of hearsay

evidence regarding the calibration records.

{¶37} To prevail on a claim for ineffective assistance of counsel, a defendant must

show that his trial counsel’s performance was deficient, and that the deficient

performance prejudiced the defense so as to deprive the defendant of a fair trial. State v.

2 Other courts have reached the same conclusion with respect to calibration records of breathalyzer machines. See, e.g., Bohsancurt v. Eisenberg,

,

(Ariz.App. 2006) (holding calibration records for breathalyzer machine were nontestimonial business records); Commonwealth v. Zeininger,

,

(2011); State v. Fitzwater,

,

(2010). Ford, 8th Dist. Cuyahoga Nos. 88946 and 88947,

, citing Strickland

v. Washington,

,

,

(1984). We have also

held that the failure to do a futile act cannot be the basis for claims of ineffective

assistance of counsel, nor could such a failure be prejudicial.

citing State v.

Henderson, 8th Dist. Cuyahoga No. 88185,

.

{¶38} An objection to the admission of the calibration records would have been a

futile act. As previously explained, the calibration records were created in the ordinary

course of business and were admissible under the business records exception to the

hearsay rule. The testimony regarding the contents of the calibration records did not

violate Kilbane’s right of confrontation because they were nontestimonial. Therefore,

even if Kilbane’s trial counsel had objected to testimony about the calibration records, the

objection would have been overruled. Kilbane was not unfairly prejudiced by the

admission of these business records.

{¶39} Therefore, the fourth assignment of error is overruled.

{¶40} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the common

pleas court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ MARY J. BOYLE, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and SEAN C. GALLAGHER, J., CONCUR