COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60107 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : WAYNE MILLER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, No. 90-TRC-14546. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Mark A. McClain, Esq. Prosecuting Attorney City of Cleveland 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John W. Hickey, Esq. 3794 Pearl Road Cleveland, OH 44109 -2- MATIA, C.J.: This appeal arises out of the judgment of the Cleveland Municipal Court. Therein, defendant-appellant was found guilty of violating traffic ordinances while under the influence of alcohol. On review of appellant's assignments of error, we find no error and affirm the judgment of the Municipal Court. STATEMENT OF THE FACTS On March 29, 1990, at approximately 9:30 p.m., while on traffic enforcement duty, Officer Dura of the Cleveland Police Department observed defendant-appellant, Wayne Miller, fail to stop for a stop sign at a Cleveland intersection. The police officer testified that after he stopped appellant's vehicle and appellant got out of his car, the officer smelled an odor of alcohol and noticed that appellant could not stand on his own, but leaned against the car. Suspecting alcohol and/or drug abuse, Officer Dura requested that the appellant take a sobriety test. Officer Dura testified that appellant replied that he was "too drunk" to repeat the alphabet or walk heel to toe. The police officer then requested appellant to submit to a chemical test. After some discussion, appellant Miller agreed to take the test. A BAT (Breath Alcohol Testing) van came to the scene. Officer Stockwell, a twenty-three year Cleveland policeman and senior operator of the chemical testing machine, administered the test. Appellant Miller's BAC reading was .211%. -3- STATEMENT OF THE CASE On March 29, 1990, appellant Wayne Miller was arrested. He was charged with violating Cleveland Codified Ordinance Section 433.01(A)(1), Operating a Motor Vehicle While Under the Influence of Alcohol and/or Drugs; Section 433.01(A)(2), Operating a Motor Vehicle With a Concentration of Ten-Hundredths of One Percent (.10%) or More by Weight in His Blood and Section 431.19, Failing to Obey a Traffic Control Device. On April 24, 1990, the appellant entered a plea of not guilty to each of the three violations. A jury trial was scheduled for June 12, 1990. Several pretrial motions were filed by appellant. Oral hearings were held on June 12, 1990, after which the court denied all of appellant's motions. Appellant then entered pleas of no contest to each of the violations. Appellant was found guilty of all three violations. On July 9, 1990, appellant was sentenced on Ordinance Section 433.01(A)(1) to $1,000.00 and court costs and 180 days in jail. Seven Hundred Dollars of the fine was suspended and 130 of the days were suspended. On Ordinance Section 433.01(A)(2), appellant was sentenced to $1,000.00 and court costs and 180 days in jail, all suspended. On Ordinance 431.19, appellant was sentenced to $25.00 and court costs, also suspended. Appellant was placed on two years active probation, conditioned upon his getting alcohol counseling. Appellant was given work release privileges for the unsuspended -4- jail time, after the first ten days. It is from this conviction and sentence appellant timely appeals. ASSIGNMENTS OF ERROR "WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT/APPELLANT'S MOTION TO SUPPRESS THE CHEMICAL TEST AND ADMITTING THE TEST RESULT INTO EVIDENCE FOLLOWING A PRETRIAL SUPPRESSION HEARING AND IN FINDING THE DEFENDANT/APPELLANT GUILTY OF THE PER SE OFFENSE WHEN, IN FACT, THE CITY FAILED TO LAY THE PROPER AND NECESSARY FOUNDATION FOR THE ADMISSION OF THE TEST INTO EVIDENCE." Appellant argues in his first assignment of error that the chemical test should not have been admitted into evidence. This assignment of error is not well taken. ISSUE: WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS FOR LACK OF PROBABLE CAUSE AND TO DISMISS EVIDENCE OF CHEMICAL TEST Appellant argues that the court improperly denied his motion to suppress evidence on the premise that there was no probable cause to stop him, that he wasn't advised as to his right of refusal to take the chemical tests, and that the tests were not conducted in accordance with the Ohio Department of Health Rules and Regulations; that he was denied his right to an attorney; and that the method of testing was not in compliance with the applicable Revised Code, that the test wasn't taken within the appropriate amount of time and/or the other administrative procedures that are necessary prior to the test being admitted, and/or that the calibration of the solution that was used was not in compliance with the mandates as established by the Ohio -5- Department of Health, that the badge number and the logging procedures were not in compliance with the law. Appellant urged the court to make a determination on probable cause and the admission of the chemical test at the suppression hearing. The prosecutor indicated to the court that case law supported the premise that proof of each and every foundational requirement relative to the admission of the chemical tests was not required at the pretrial suppression hearing. The court responded by stating that it would proceed with the probable cause issue. "*** However, I would tend to agree at this point *** that all these matters are part of the charge, and if during the course of the trial, if these things are not established as a matter of law, the court has a right not to let that part of the case go to the jury." The court then proceeded to take testimony from the officers on duty to establish probable cause and Fifth and Sixth Amendment constitutional rights. After which, the court found the existence of probable cause and found no violation of the Fifth and Sixth Amendment constitutional rights. Then the court heard evidence on the motion to dismiss the chemical test. After hearing the evidence the court held: "The Court had a chance to listen to the defendant here and the arguments of counsel. The Court finds that at this point in time there has been substantial compliance with the Department Rules. Also, as the Court indicated earlier, it believes that ultimately this is a decision for the jury, an issue of fact for the jury to determine whether or not the rules of the Department of Health was complied with. The -6- Court in its initial statements said this would be a brief and general hearing, as a matter of law, whether or not the city of Cleveland has complied. The Court, after listening to the testimony, has made a decision, as a matter of law, that it should be an issue for the jury. So, based on that, the Defendant's Motion to Dismis (sic) will be overruled. ***" Absent an abuse of discretion our court will not reverse a trial judge's decision supported by competent, credible evidence. City of Cleveland v. Northeast Ohio Regional Sewer District (1989), Cuyahoga App. No. 55709, unreported. An abuse of discretion has been defined as arbitrary, unreasonable and unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. We find no abuse of discretion in the within case. The trial judge heard the evidence and found substantial compliance with the Department of Health rules and regulations. The trial judge determined that the issue of compliance was an issue properly for the jury's review. The Court of Appeals for Athens County in State v. Brockway (1981), 2 Ohio App. 3d 227, cited a Florida Supreme Court decision in helping it to determine the legislative intent for the admission of alcohol breath tests in R.C. 4511.19: "In State v. Bender, supra," ((Fla. 1980), 382 So. 2d 697), the Florida Supreme Court went even further and stated with respect to the admissibility of alcohol test results, under a statutory and rule scheme similar to Ohio's, the following: "When the prosecution presents testimony in evidence concerning motor vehicle driver intoxication which includes an approved alcohol test method by a properly licensed operator, the -7- fact finder may presume that the test procedure is reliable, the operator is qualified, and the presumptive meaning of the test as set forth in Section 322.262(2) is applicable." Brockway, supra, at 232. Herein, the issue of compliance was precluded from jury determination because appellant's no contest plea. The court, however, preliminarily found substantial compliance with the statutory scheme for chemical testing, and also found substantial compliance with the Department of Health requirements. Competent, credible evidence supports the court's judgment. Accordingly, appellant's Assignment of Error I is overruled. ASSIGNMENT OF ERROR II "II. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT/APPELLANT'S MOTION TO EXCLUDE POLICE OFFICER DURA'S TESTIMONY FROM EVIDENCE AS THE CITY FAILED TO LAY THE PROPER AND NECESSARY FOUNDATION AS REQUIRED BY THE OHIO REVISED CODE SECTION 4549.13 THROUGH 4549.16 TO ESTABLISH THE OFFICER AS A COMPETENT WITNESS TO GIVE TESTIMONY AGAINST THE DEFENDANT/APPELLANT IN THE PROSECUTION OF THIS MISDEMEANOR TRAFFIC CASE." Appellant argues in his second assignment of error that the trial court erred in overruling appellant's motion to exclude police officer Dura's testimony. Specifically, appellant argues that police officer Dura was not a competent witness. This assignment of error is not well taken. ISSUE: WHETHER OFFICER DURA'S TESTIMONY WAS INCOMPETENT "*** R.C. 4549.14 and 4549.16 and Evid. R. 601(C) make an officer 'while on duty for the exclusive or main purpose of enforcing traffic laws' incompetent to testify if he was 'not using a properly marked motor vehicle as defined by -8- statute or was not wearing a legally distinctive uniform as defined by statute.'" Appellant Miller within argued that the prosecutor had not met its burden of proof in regards to Officer Dura's competency to testify because the state had not shown compliance with the aforementioned statutes. Relying on Milnark v. Eastlake (1968), 14 Ohio Misc. 185, we reiterate that where, in a prosecution for violation of a traffic ordinance, the accused objects to the arresting officer as a witness because of incompetency under R.C. 4549.14, which requires a marked vehicle, and R.C. 45459.16, which requires a distinctive uniform, the burden of proof is upon the accused to establish by evidence, such incompetency. Milnark, supra at syllabus 1. In Milnark, the defendant appealed a judgment and sentence of the Municipal Court upon a conviction for violating a traffic ordinance while driving under the influence of alcohol. The defendant moved to have the testimony of the two arresting officers stricken because the city had offered no evidence showing the witnesses were competent pursuant to the statutes. The common pleas court answered by stating that: "The real question this appeal raises is which party has the burden of offering proof on the subject of the qualification of a witness to testify. Must he who calls him prove him competent? Or must he who challenges him show incompetency? "Without doubt the burden rests on the latter. This defendant was obliged to present evidence, either by cross-examination of the officers or by testimony of other witnesses, that -9- the conditions which disqualify an arresting officer, i.e., an unmarked motor vehicle or a nondistinctive uniform, existed at the time of this arrest." Milnark, supra at 186, 187. I n the case sub judice, the trial court held a pretrial hearing on several motions. Appellant waited until the prosecutor rested his case on the issue of probable cause, and then made a motion to dismiss pursuant to Officer Dura's incompetence to testify because the prosecutor had not shown that the officer was competent pursuant to R.C. 4549.14 and 4549.16 and Evid. R. 601(C). We affirm the holding of Milnark, and hold that the burden to disqualify an officer's testimony pursuant to R.C. 4549.14 and 4549.16 and Evid. R. 601(C) rests with the defense. The state is required to prove that every element of the crime exists beyond a reasonable doubt. Compliance with the mandates of R.C. 4549.14 and 4549.16 was not an element of the crime of driving under the influence of alcohol and/or drugs of abuse. What was at issue when the prosecutor rested his case was whether or not the state had met the burden of proof necessary for the court to find probable cause to go forward with the indictment of appellant Miller. Citing Milnark, -10- "The subject was not closed then. Defendant could have offered evidence during his own case or asked for permission to recall the officers for further cross-examination, then renewed his motions. That he did not choose to do either suggests that he knew no disqualifying facts existed. But regardless what prompted the choice, its making forever barred him from challenging the witnesses." Milnark, supra at 187. In accord with the holding of Milnark, we overrule appellant's second assignment of error. The objection to Officer Dura's testimony was not questioned at the proper time nor was a timely objection made. Perhaps if the officer's competency had been put into issue by the defense, the court could have considered evidence as to whether or not the officer was qualified to testify by showing that he had or had not complied with R.C. 4549.14 and 4549.16. In this case, the court had evidence only that the officer had put his flashing light on top of his car. Without more evidence elicited by appellant to impeach that testimony to show incompetence, the trial court did not err in overruling appellant's motion. Accordingly, Assignment of Error II is overruled. ASSIGNMENT OF ERROR III "III. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT/APPELLANT'S MOTION TO DISMISS PURSUANT TO CLEVELAND CODIFIED ORDINANCE SECTION 413.01, AFTER DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON THIS MATTER SPECIFICALLY FOR THE PURPOSE OF PRESENTING FACTS TO SUPPORT HIS MOTION AND IN SUBSEQUENTLY OVERRULING THE DEFENDANT/APPELLANT'S MOTION TO SUPPRESS EVIDENCE UPON A FINDING OF PROBABLE CAUSE WHICH THE COURT BASED DIRECTLY UPON THE ARRESTING OFFICER'S TESTIMONY RELATIVE TO THE STOP SIGN VIOLATION." -11- Appellant argues in his third assignment of error that the trial court erred in overruling appellant's motion to dismiss pursuant to Cleveland Codified Ordinance 413.01, and the court erred in overruling appellant's motion to suppress evidence. Specifically, appellant argues that his traffic violation misdemeanor was based on an illegally posted stop sign. This assignment of error is not well taken. ISSUE: WHETHER THE POSTED STOP SIGN VIOLATED CITY ORDINANCE 413.01 AND SECTION 2B-4 OF THE MANUAL OF UNIFORM TRAFFIC CONTROL DEVICES Cleveland Municipal Ordinance 413.01 states in pertinent part: "No provisions of this Traffic Code for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person. Whenever a particular section does not state that signs are required, such section shall be effective even though no signs are erected or in place." Section 2B-4 of the Manual of Uniform Traffic Control Devices states in pertinent part that "Secondary messages shall not be used on STOP sign faces." Appellant contends that the stop sign posted at the intersection of Merwin Avenue and Center Street in Cleveland, Ohio, and the stop sign allegedly violated in the within case, violates the City Ordinance Section and the manual section. Appellant's argument is meritless. -12- Appellant submitted into evidence a photograph of the alleged illegally posted stop sign. A review of that photograph indicates that the secondary messages are posted above and below the stop sign face itself. In section 2B-4 of the Manual of Uniform Traffic Control Devices, a stop sign is described as an octagon with white message and border on a red background. Appellant's photograph of the stop sign reveals that there are no messages or any other writing, pictures or other signs on the octagon except for a large easily readable "STOP". We do not find any secondary messages on the face of the octagon shape, except for what is required to be there, which is the word "STOP." Appellant's argument then is not only meritless, but rather frivolous. A very plain reading of the manual section and a quick look at the photo indicates that the stop sign is not illegally posted. Therefore, we must overrule appellant's Assignment of Error III. ASSIGNMENT OF ERROR IV "IV. WHETHER THE TRIAL COURT ERRED IN FINDING THE DEFENDANT/APPELLANT GUILTY OF VIOLATING CLEVELAND CODIFIED ORDINANCE SECTION 433.01(A)(2), OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL WITH A CONCENTRATION OF TEN-HUNDREDTHS OF ONE PERCENT OR MORE BY WEIGHT OF ALCOHOL IN HIS BLOOD, WHERE SUCH A FINDING IS NOT SUPPORTED BY THE EVIDENCE." Appellant argues in his fourth assignment of error that the trial court erred in finding appellant guilty of violating -13- Cleveland Ordinance 433.01(A)(2). Specifically, appellant argues that appellant's breath test failed to establish an illegal blood content offense. This assignment of error is not well taken. ISSUE: WHETHER A BREATH TEST DONE ON THE ALCO-SENSOR RBT III COULD HAVE SHOWN THE ILLEGAL ALCOHOL CONTENT IN APPELLANT'S BLOOD A review of the record indicates that appellant's Assignment of Error IV is without merit. On direct examination and cross- examination, Officer Stockwell submitted competent, credible evidence, which, if believed, would convince the average mind of appellant's guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Officer Stockwell testified that he had been a police officer for 23 years and that he was a certified operator of the Alco- Sensor RBT III. "Q. As part of the duties as a police officer, do you operate the Alco-Sensor RBT III? "A. Yes, I do. "Q. Are you certified to operate that? "A. Yes, I am. "*** "Q. Let me hand you what's been marked as City's Exhibit 1. Do you recognize that? "A. Yes, I do. "Q. And what is it? -14- "A. It's an Alcohol Testing Approval Permit from the Ohio Department of Health. "Q. What does it mean to have an Alcohol Approval Permit? "A. This is to certify that I'm qualified as a senior operator to run the Alco-Sensor RBT III, also to run the machine for calibration testing. "Q. How long have you been certified to run that machine? "A. As of December of '89. "Q. Are you a senior operator? "A. Yes. (Tr. 37.) Officer Stockwell testified as to steps taken to perform the test on appellant. "Q. Did you properly perform this test on the date of March 29? "A. Yes, I did. "Q. Could you describe for the Court what steps you took to properly prepare the machine before taking the sample from the defendant? What did you do prior to taking the test from the defendant? "A. Before the test you run what they call a blank test. You run the machine through the procedure and if it reads -- it comes out 000 on the reading, that means the machine is all clear of any alcohol from any previous test which you might have given somebody else. "Q. What else do you do prior to administering the test? "A. You make sure that the defendant is observed at least 20 minutes before you give the test, make sure he put nothing in his mouth or anything like that? -15- "Q. And were you able to run a test on the defendant, Wayne Miller? "A. Yes, I did. "Q. Do you recall what the test result was? "A. I believe it was .211." (Tr. 42, 43.) The record indicates that Officer Stockwell received test results from the Alco-Sensor RBT III which indicated that appellant had an illegal alcohol blood content pursuant to Cleveland Ordinance 433.01(A)(2) which requires a concentration of ten-hundredths of one percent or more by weight of alcohol in the blood. Appellant was found to have .211%. Appellant relies on Toledo v. Raider (1983), 14 Ohio App. 3d, 198 in which case the state Supreme Court held that a sufficient foundation for the admission of a breath test must include testimony corroborating the reading on the breathalyzer with an explanation as to its meaning. In the case sub judice, we note that the defense counsel objected to the prosecutor's question as to what the breathalyzer test reading meant. "Q. Thank you, officer. You had stated previously the readout for the defendant was a .211; is that correct? "A. Yes, it was. "Q. Can you please describe for the Court what a .211 reading means? "A. A .211 -- "MR. HICKEY: Objection, your Honor. "THE COURT: At this point it will be sustained." (Tr. 45.) -16- We find that the court committed error by sustaining defense counsel's objection to the question. We hold, however, that the error was invited error on the part of defense counsel and therefore cannot rise to reversible error. A party is not permitted to take advantage of an error which it invited the trial court to make. Lester v. Leuck (1943), 142 Ohio St. 91, paragraph one of the syllabus, Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St. 3d 20; Frank v. Vulcan Materials Company (1988), 55 Ohio App. 3d 153. Accordingly, appellant's Assignment of Error IV is overruled. The trial court is affirmed. -17- It is ordered that appellee recover of appellant its 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 Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial 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. KRUPANSKY, J., CONCURS IN JUDGMENT ONLY; SPELLACY, J., CONCURS IN PART AND DISSENTS IN PART (WITH OPINION). DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60107 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : : v. : CONCURRING AND DISSENTING : WAYNE MILLER : OPINION : : DEFENDANT-APPELLANT : DATE: APRIL 2, 1992 LEO M. SPELLACY, J., CONCURRING, IN PART, AND DISSENTING, IN PART: I would find appellant's fourth assignment of error to be well taken. Even if appellant's objection constituted invited error, I find it a leap of faith to conclude that the results of the breath test, when converted, would demonstrate that appellant had an impermissible concentration of alcohol in his blood. If it wanted to rely on the testimony of Officer Stockwell would have given, the City should have proffered it into the record. Although I would delete appellant's conviction for operating a vehicle in violation of Cleveland Codified Ordinances Section 433.01(a)(2), I find his conviction and sentence for operating a vehicle in violation of Cleveland Codified Ordinances Section 433.01(a)(1) to be valid. .