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State v. Canada1/31/2003
DECISION AND JUDGMENT ENTRY
. This case is before the court on appeal from the Ottawa County Municipal Court, which entered judgment on a jury verdict finding appellant Susan Canada guilty of driving while under the influence of alcohol ("DUI"). Because we find that the trial court abused its discretion in excluding appellant's expert testimony, we reverse the judgment of the trial court.
. On December 2, 2000, appellant was arrested in Ottawa County for driving under the influence of alcohol. After a breath test indicated that her alcohol concentration was .123, appellant was charged under R.C. 4511.19(A)(1) (driving while under the influence of alcohol) and 4511.19(A)(3) (driving with an alcohol concentration of .10 or greater).
. In March 2001, the parties represented to the court that discovery had been completed. Nevertheless, on Thursday, July 12, 2001, appellant's attorney orally informed the state that the defense intended to call an expert, Robert Bellotto, to testify at trial. Defense counsel then faxed this information to the state later the same day. Trial began on July 17, 2001. Immediately before the state rested, it moved to exclude Bellotto's testimony. The state advanced several reasons for excluding the testimony; as relevant to this case, the state argued that the testimony should be excluded under Crim.R. 16(E)(3) since the defense had not timely disclosed the name of this expert or the nature of his testimony. According to the state, its case would be prejudiced if the testimony were allowed since the state did not have time to prepare for cross-examination of the expert.
. The defense contended that the motion should not be granted because Crim.R. 16 imposed no duty upon the defense to disclose the expert's name. The defense acknowledged that it has a reciprocal duty to disclose in discovery, upon request, any information that it requested from the state; however, according to the defense, it did not request this type of information from the state. The trial court inquired into whether the defense believed it would have a reciprocal duty to disclose the name of the expert in a timely fashion since the defense had requested discovery from the state seeking, "Results of chemical or scientific tests or experiments made in connection with this case *." Defense counsel indicated that he was not under such a reciprocal duty because the expert was not going to testify about a scientific test or experiment. According to defense counsel, the expert was simply going to testify about his own calculation of appellant's alcohol concentration using data provided to him about appellant's physical characteristics, the amount of alcohol she consumed in the given period of time, and so forth.
. The trial court concluded that Crim.R. 16 applied and that the defense's request for discovery from the state for the results of any scientific or experimental tests imposed upon the defense the reciprocal duty of disclosing the name of its expert to the state in a timely manner. Therefore, the trial court excluded the expert's testimony for failing to disclose the expert's name in a timely manner. According to the trial court, such a ruling was in keeping with the spirit of the discovery rules for criminal cases. However, the trial court also twice made mention on the record during the discussion of this motion that this was not the first time that defense counsel had been involved in situations such as this one. The court allowed the defense to make a proffer of the expert's testimony.
. Following deliberation, the jury found appellant guilty of both charges. Pursuant to the state's request, the court sentenced appellant only on the
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