 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hamilton4/12/2002
be "based on reliable scientific, technical or other specialized information." Therefore, Mr. Jeffries' opinion testimony was that of a lay witness. Lay opinion testimony is limited to those opinions "which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue." Evid.R. 701.
Courts have held that a lay person can testify on the subject of sobriety or lack thereof. See State v. Holland (Dec. 17, 1999), Portage App. No. 98-P-0066, unreported, 1999 Ohio App. LEXIS 6143, at *15. However, a police officer is not permitted to testify as to how many beers a person would have had to consume in a given time period to reach a certain blood alcohol level. State v. James (1980), 68 Ohio App.2d 227, 229. The James court then held, "the question does not seek an opinion as to the effect resulting from a certain cause, but seeks an opinion as to the cause which results in a certain effect." Id. This is exactly the problem with what Mr. Jeffries did in this case. He testified to his opinion as to the cause (smoking "wet") which results in a certain effect (acting aggressively.)
Mr. Jeffries testified that he has observed people on "wet," and they tend to act more aggressively. The fact that appellant appeared to act aggressively on the night in question, standing alone, is not conclusive proof that he was under the influence of "wet." There are many other drugs, including alcohol, that can make people aggressive. Moreover, there are a substantial number of non-narcotic reasons that could make a person aggressive. Finally, many drugs, alcohol for instance, affect different people in different ways. After drinking alcohol, one individual may become violent, while another individual may become relaxed and subdued. There was no evidence presented that Mr. Jeffries had witnessed appellant using "wet" or that he was familiar with the way appellant acted while under the influence of "wet."
The Supreme Court of Ohio has recently held that "a drug user lay witness can establish his or her competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established." State v. McKee (2001), 91 Ohio St.3d 292, 297. The McKee case, however, concerned an individual who actually saw the drugs. In this case, Mr. Jeffries was not identifying "wet." He did not testify that he witnessed appellant smoke "wet" on the night in question. Nor did he testify that he had ever watched appellant smoke "wet" at any time in the past. Yet, he was able to conclude that, because appellant acted aggressively, he was under the influence of "wet."
Mr. Jeffries was not identifying a certain drug that he saw. Nor was he merely testifying that appellant was intoxicated. He was giving his opinion to the cause of appellant's intoxication. This is beyond the scope of lay opinion testimony. The reason this opinion evidence is not admissible is that, since Mr. Jeffries did not see appellant use "wet," his opinion was not rationally based on his perception, as required by Evid.R. 701(1). Rather, the witness's opinion was based on an inference drawn by the witness. This is improper opinion evidence and should not have been admitted by the trial court. State v. McKee, 91 Ohio St.3d at 296.
Appellant's third assignment of error, as relates it to the evidence concerning drugs, is sustained.
Appellant's eighth assignment of error is:
"The appellant's conviction is against the manifest weight of the evidence."
Having found merit to appellant's third and fifth assignments of error, this assignment of error is moot.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|