[Cite as State v. Daly, 2012-Ohio-4151.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110602 TRIAL NO. C-11TRC-14216(A) Plaintiff-Appellee, : O P I N I O N. vs. :
ANTHONY V. DALY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 14, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew T. Ernst, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. D INKELACKER , Judge.
{¶1} In one assignment of error, defendant-appellant Anthony Daly claims
that his conviction for operating a motor vehicle while under the influence of alcohol
was improper. We disagree.
{¶2} Daly was involved in a single-car accident. By the time sheriff’s
deputies arrived at the scene, Daly had been placed in an ambulance. The
investigating deputy noticed a strong odor of an alcoholic beverage coming from
Daly. He noticed that Daly’s speech was slurred, and that Daly’s eyes were glassy and
bloodshot. At the hospital, Daly acknowledged that he had been driving, but refused
to submit to any testing that would determine his blood-alcohol content. Daly was
charged with violating R.C. 4511.19(A)(1)(a), which states that “[n]o person shall
operate any vehicle * * * if, at the time of the operation * * * [t]he person is under the
influence of alcohol, a drug of abuse, or a combination of them.” Additionally, he
was charged under R.C. 4511.19(A)(2)(b), which prohibits individuals, after being
arrested for operating a vehicle while under the influence (“OVI”), from refusing to
submit to a chemical blood-alcohol test if they have been convicted of an OVI offense
within the previous 20 years. Daly was also cited for traffic offenses, which are not
the subject of this appeal.
{¶3} Daly entered a plea of not guilty and the matter proceeded to a bench
trial. Daly stipulated that he had previously been convicted of an OVI offense in
1998, within the 20-year “look-back” period of R.C. 4511.19(A)(2)(b). After hearing
from two deputies, the trial court found Daly guilty of violating R.C. 4511.19(A)(1)(a),
but not guilty of violating R.C. 4511.19(A)(2)(b). In so finding, the trial court said
that:
2 [b]ased on the totality of circumstances, including but not limited to,
the strong odor of alcohol coming from inside the vehicle and from the
defendant’s person, the slurred speech, * * * Deputy Losekamp said he
was very difficult, hard to understand, circumstances surrounding the
accident, watery, bloodshot eyes * * * taking into account the refusal to
submit to the blood test, I’m gonna find you guilty.
{¶4} After some additional brief comments, the trial court added “taking
into account his prior 1998 OVI conviction umm - - there’s going to be a guilty
finding * * * on the A(1)(a).”
{¶5} On appeal, Daly argues that his conviction was improper because the
trial court expressly relied on his prior OVI conviction, which was not an element of
the offense under R.C. 4511.19(A)(1)(a). When reviewing a bench trial, the appellate
court presumes that the trial court considered “only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the
contrary.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ___ N.E.2d ___, ¶
195, quoting State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).
{¶6} In this case, the trial court had found Daly guilty prior to referencing
his 1998 OVI conviction. Thus, the trial court had reached its decision at that point,
and it had listed the factual determinations that supported its decision. The finding
of guilt was based on several relevant factors, outlined above, all of which were
competent factors in determining his guilt. The fact that, after finding Daly guilty,
the trial court mentioned the prior conviction—a conviction to which Daly had
stipulated and which was an element of the charged R.C. 4511.19(A)(2)(b) offense—
does not change this result. In light of the deference that this court must give the
3 determination of the trial court, Daly’s conviction under R.C. 4511.19(A)(1)(a) cannot
be reversed due to a misstatement by the trial court, which was made after guilt had
been determined. Therefore, we overrule Daly’s sole assignment of error.
{¶7} Having considered and overruled Daly’s sole assignment of error, we
affirm the judgment of the trial court.
Judgment affirmed.
SUNDERMANN, P.J., concurs. CUNNINGHAM, J., dissents.
CUNNINGHAM, J., dissenting.
{¶8} When this court reviews a bench trial in a criminal case, we presume that
the “court considered only the relevant, material, and competent evidence in arriving at
its judgment unless it affirmatively appears to the contrary.” State v. White, 15 Ohio
St.2d 146, 151, 239 N.E.2d 65 (1968). This presumption is overcome, however, when
the trial court affirmatively states that it relied on inadmissible evidence. See Moore v.
United States, 429 U.S. 20, 22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976). Compare State v.
Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987) (holding that absent an indication
that the three-judge panel was influenced by or considered the victim impact evidence in
arriving at its sentencing decision, the admission of the victim impact evidence at the
mitigation hearing did not constitute prejudicial error.)
{¶9} Daly’s prior OVI conviction was not admissible under the Rules of
Evidence to establish his propensity to violate R.C. 4511.19(A)(1)(a) in March 2011, and
the use of the evidence for that purpose conflicts with the policies underlying the right to
a fair trial under the Due-Process Clause. See Evid.R. 404; Brinegar v. United States,
338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Zackowitz, 254 N.Y.
192, 197, 172 N.E. 466 (1930).
4 {¶10} Thus, the proper inquiry is whether the record affirmatively shows that
the trial court relied on the inadmissible evidence as substantive evidence of guilt. The
majority’s refusal to find error based on the timing of the court’s declaration ignores the
reality that the trial court made only one determination of guilt.
{¶11} Here, the trial court stated that it had relied on Daly’s prior conviction as
substantive evidence of the R.C. 4511.19(A)(1)(a) offense, and it did not correct itself
after defense counsel objected and brought the error to the trial court’s attention.
Therefore, the error affirmatively appears on the record.
{¶12} The state argues that the trial court’s reliance on the prior conviction in
determining Daly’s guilt was harmless in light of the other evidence to support the
conviction. This court must ignore errors that do not affect the substantial rights of the
defendant. Crim.R. 52(A). The Ohio Supreme Court has repeatedly held that “[e]rror in
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[Cite as State v. Daly, 2012-Ohio-4151.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110602 TRIAL NO. C-11TRC-14216(A) Plaintiff-Appellee, : O P I N I O N. vs. :
ANTHONY V. DALY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 14, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Matthew T. Ernst, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. D INKELACKER , Judge.
{¶1} In one assignment of error, defendant-appellant Anthony Daly claims
that his conviction for operating a motor vehicle while under the influence of alcohol
was improper. We disagree.
{¶2} Daly was involved in a single-car accident. By the time sheriff’s
deputies arrived at the scene, Daly had been placed in an ambulance. The
investigating deputy noticed a strong odor of an alcoholic beverage coming from
Daly. He noticed that Daly’s speech was slurred, and that Daly’s eyes were glassy and
bloodshot. At the hospital, Daly acknowledged that he had been driving, but refused
to submit to any testing that would determine his blood-alcohol content. Daly was
charged with violating R.C. 4511.19(A)(1)(a), which states that “[n]o person shall
operate any vehicle * * * if, at the time of the operation * * * [t]he person is under the
influence of alcohol, a drug of abuse, or a combination of them.” Additionally, he
was charged under R.C. 4511.19(A)(2)(b), which prohibits individuals, after being
arrested for operating a vehicle while under the influence (“OVI”), from refusing to
submit to a chemical blood-alcohol test if they have been convicted of an OVI offense
within the previous 20 years. Daly was also cited for traffic offenses, which are not
the subject of this appeal.
{¶3} Daly entered a plea of not guilty and the matter proceeded to a bench
trial. Daly stipulated that he had previously been convicted of an OVI offense in
1998, within the 20-year “look-back” period of R.C. 4511.19(A)(2)(b). After hearing
from two deputies, the trial court found Daly guilty of violating R.C. 4511.19(A)(1)(a),
but not guilty of violating R.C. 4511.19(A)(2)(b). In so finding, the trial court said
that:
2 [b]ased on the totality of circumstances, including but not limited to,
the strong odor of alcohol coming from inside the vehicle and from the
defendant’s person, the slurred speech, * * * Deputy Losekamp said he
was very difficult, hard to understand, circumstances surrounding the
accident, watery, bloodshot eyes * * * taking into account the refusal to
submit to the blood test, I’m gonna find you guilty.
{¶4} After some additional brief comments, the trial court added “taking
into account his prior 1998 OVI conviction umm - - there’s going to be a guilty
finding * * * on the A(1)(a).”
{¶5} On appeal, Daly argues that his conviction was improper because the
trial court expressly relied on his prior OVI conviction, which was not an element of
the offense under R.C. 4511.19(A)(1)(a). When reviewing a bench trial, the appellate
court presumes that the trial court considered “only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the
contrary.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ___ N.E.2d ___, ¶
195, quoting State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).
{¶6} In this case, the trial court had found Daly guilty prior to referencing
his 1998 OVI conviction. Thus, the trial court had reached its decision at that point,
and it had listed the factual determinations that supported its decision. The finding
of guilt was based on several relevant factors, outlined above, all of which were
competent factors in determining his guilt. The fact that, after finding Daly guilty,
the trial court mentioned the prior conviction—a conviction to which Daly had
stipulated and which was an element of the charged R.C. 4511.19(A)(2)(b) offense—
does not change this result. In light of the deference that this court must give the
3 determination of the trial court, Daly’s conviction under R.C. 4511.19(A)(1)(a) cannot
be reversed due to a misstatement by the trial court, which was made after guilt had
been determined. Therefore, we overrule Daly’s sole assignment of error.
{¶7} Having considered and overruled Daly’s sole assignment of error, we
affirm the judgment of the trial court.
Judgment affirmed.
SUNDERMANN, P.J., concurs. CUNNINGHAM, J., dissents.
CUNNINGHAM, J., dissenting.
{¶8} When this court reviews a bench trial in a criminal case, we presume that
the “court considered only the relevant, material, and competent evidence in arriving at
its judgment unless it affirmatively appears to the contrary.” State v. White, 15 Ohio
St.2d 146, 151, 239 N.E.2d 65 (1968). This presumption is overcome, however, when
the trial court affirmatively states that it relied on inadmissible evidence. See Moore v.
United States, 429 U.S. 20, 22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976). Compare State v.
Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987) (holding that absent an indication
that the three-judge panel was influenced by or considered the victim impact evidence in
arriving at its sentencing decision, the admission of the victim impact evidence at the
mitigation hearing did not constitute prejudicial error.)
{¶9} Daly’s prior OVI conviction was not admissible under the Rules of
Evidence to establish his propensity to violate R.C. 4511.19(A)(1)(a) in March 2011, and
the use of the evidence for that purpose conflicts with the policies underlying the right to
a fair trial under the Due-Process Clause. See Evid.R. 404; Brinegar v. United States,
338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); People v. Zackowitz, 254 N.Y.
192, 197, 172 N.E. 466 (1930).
4 {¶10} Thus, the proper inquiry is whether the record affirmatively shows that
the trial court relied on the inadmissible evidence as substantive evidence of guilt. The
majority’s refusal to find error based on the timing of the court’s declaration ignores the
reality that the trial court made only one determination of guilt.
{¶11} Here, the trial court stated that it had relied on Daly’s prior conviction as
substantive evidence of the R.C. 4511.19(A)(1)(a) offense, and it did not correct itself
after defense counsel objected and brought the error to the trial court’s attention.
Therefore, the error affirmatively appears on the record.
{¶12} The state argues that the trial court’s reliance on the prior conviction in
determining Daly’s guilt was harmless in light of the other evidence to support the
conviction. This court must ignore errors that do not affect the substantial rights of the
defendant. Crim.R. 52(A). The Ohio Supreme Court has repeatedly held that “[e]rror in
the admission of evidence is harmless if there is no reasonable possibility that the
evidence may have contributed to the accused’s conviction. In order to hold the error
harmless, the court must be able to declare a belief that the error was harmless beyond a
reasonable doubt.” State v. Bayless, 48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976),
paragraph seven of the syllabus, vacated in part on other grounds, 438 U.S. 911, 98
S.Ct. 3135, 57 L.Ed.2d 1155 (1978).
{¶13} I am not persuaded that Daly would have been convicted absent the
inadmissible evidence. See State v. Allen, 29 Ohio St.3d 53, 55, 506 N.E.2d 199 (1987).
{¶14} The inference of conforming conduct was particularly strong because the
prior conviction involved the exact same crime. And, as demonstrated below, the
strength of each one of the remaining factors that the trial court relied upon in
determining guilt was diluted in some way at trial, leading me to conclude that the
5 evidence of the prior conviction affected the court’s weighing of the evidence on these
other factors in a way prejudicial to Daly.
{¶15} According to Deputy Losekamp, who responded to the scene, Daly’s
accident occurred on a dark, slippery, and curvy stretch of roadway that had been the
site of previous accidents. Further, Losekamp conceded that the accident could have
caused Daly’s slurred speech and glassy, watery, and bloodshot eyes because Daly had
suffered a serious head injury, and a large quantity of talcum powder had been
disbursed into the car when the front and side airbags had deployed.
{¶16} Further, while Losekamp and Deputy Butler, who interviewed Daly at
the hospital, both testified that that they had smelled alcohol on Daly’s breath, the
emergency room medical record did not contain any reference to alcohol in Daly’s
system or on his breath. And a notation in these records states that Daly was
“conversing and answering questions without difficulty.”
{¶17} Additionally, the trial court’s reliance on Daly’s refusal to take a chemical
blood-alcohol test as a factor supporting a finding of guilt was undermined by the court’s
determination that Daly had not violated R.C. 4511.19(A)(2)(b). This statute prohibits
individuals, after being arrested for operating a vehicle while under the influence
(“OVI”), from refusing to submit to a chemical blood-alcohol test if they have been
convicted of an OVI offense within the previous 20 years. Daly stipulated to his prior
OVI offense for purposes of the R.C. 4511.19(A)(2)(b) offense.
{¶18} Finally, the trial court stated that it was a “tough call” when he overruled
Daly’s motion for an acquittal.
{¶19} Because, on this record, there is a reasonable possibility that the prior-
OVI evidence may have contributed to Daly’s conviction, I cannot say that the trial
6 court’s error was harmless beyond a reasonable doubt. See Allen, 29 Ohio St.3d at 55,
506 N.E.2d 199, citing Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035, paragraph seven of
the syllabus. I would reverse Daly’s conviction and remand the cause for a new trial.
Please note: The court has recorded its own entry on the date of the release of this opinion.