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Miller v. State6/13/2001
reversed because the prosecution improperly introduced the sentencing sheet and his blood alcohol content from the prior offense. This contention also fails.
While we agree that "the better method would be not to admit the sentence in a prior offense where a similar transaction is involved," we find that this error was harmless. Since this was a bench trial, there was no jury that would have been affected by the sentence. " t is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible." Similarly, it is presumed that the trial judge is capable of weighing evidence without being swayed by its potentially inflammatory nature. The admission of the sentence sheet does not warrant reversal on appeal because Miller cannot show both error and harm.
Pretermitting whether the admission of evidence regarding Miller's blood alcohol content from the prior offense was erroneous, Miller has the burden to show error affirmatively by the record and he has not done so. The scant record includes Officer Jones' testimony, three exhibits, and the court's ruling. The exhibits do not contain Miller's blood alcohol content. Additionally, the state did not elicit Miller's blood alcohol content of .139 from the prior offense; Miller's counsel did. "A party cannot reap the benefit of any error caused or aided by his own trial tactics, procedure or conduct." Finally, even when the prosecution asked Officer Jones whether Miller's breath test result in 1996 was greater than 0.094, Miller did not object. "A defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action." Miller's failure to do so waives the error.
3. Miller's final argument is that the similar transaction should not have been admitted for lack of proper foundation because the prosecution did not introduce documentary evidence, such as the breath test slip and the officer's permit to operate the breath machine, and testimonial evidence that the machine was in proper working order. This specific information about Miller's blood alcohol content from the prior offense was "irrelevant to demonstrate any similarity or lack thereof with regard to the present offense for which appellant was prosecuted, DUI -- less safe driver, wherein a specific blood alcohol content is unnecessary to prove the offense." Further, the information was also inapposite because the prior offense was introduced solely to show Miller's bent of mind and course of conduct. Accordingly, this argument also lacks merit.
Judgment affirmed.
Blackburn, C. J., and Pope, P. J., concur.
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