COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69708 : CITY OF CLEVELAND : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION BERNARD BYERS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 95 TRC 029135 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SHARON SOBOL-JORDAN, ESQ. GEORGE W. MacDONALD, ESQ. Cleveland Law Director DONALD P. MULL CO., L.P.A. CAROLYN W. ALLEN, ESQ. 848 Rockefeller Building Chief Prosecuting Attorney Cleveland, Ohio 44113 MAURA O'NEILL JAITE, ESQ. Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Defendant, Bernard Byers, appeals from his conviction for driving under the influence of alcohol, driving under the influence with a prohibited level of alcohol in his urine, and operation of a motor vehicle with a willful and wanton disregard of safety. On appeal, defendant argues the trial court erred because (1) defense counsel was not permitted to cross-examine the officer regarding a sworn statement made by the officer, (2) the results of a blood alcohol test were improperly admitted when a proper chain of custody was not established, (3) the conviction was not supported by sufficient evidence and was against the manifest weight of the evidence, and (4) the Double Jeopardy clauses of the U.S. and Ohio Constitutions bar defendant's conviction after an administrative license suspension ("ALS"). These arguments have no merit and the judgment is affirmed. The relevant facts follow. On June 23, 1995, at approximately 12:35 a.m. defendant was stopped while driving westbound on Clark Avenue in the City of Cleveland. The arresting officers observed defendant driving without his headlights on and making a left turn from the far right curb lane. The officers further observed defendant weaving. Upon being pulled over, defendant was unable to produce a valid driver's license. The officers further stated that, when asked to say the alphabet, defendant could not complete the - 3 - alphabet and he slurred his words. Additionally, defendant could not complete the one-leg field sobriety test. During the entire time the officers noticed a strong smell of alcohol from defendant. Defendant was taken to the police station. He was unable to perform the breathalyzer test because of health reasons. Defendant did, however, consent to a urine test. The Cleveland Police Forensic Laboratory tested the sample and determined that the level of alcohol in the sample was .28 percent, twice the legal limit of presumed intoxication. Officer Thevenin testified that he administered an alphabet test to defendant. Defendant slurred his speech and could not complete this test. The officer further stated that defendant could not produce a license and that he had a strong odor of alcohol about his person. Thevenin also administered a one-leg stand test, which defendant failed. He concluded his testimony by stating that, in his opinion, defendant was intoxicated and unfit to drive an automobile. Officer Harper was the second witness for the state and testified as follows. On the night in question, he was riding with Officer Thevenin. Corroborating Officer Thevenin's testimony, Harper specifically reiterated that defendant smelled of alcohol, failed the one-leg stand test, and had slurred speech. The final witness for the state was Charles Sikora, a Scientific Examiner employer by the Cleveland Police Forensic - 4 - Laboratory. He explained that the presumed level of intoxication for urine is .14 percent alcohol. He stated that defendant's urine sample tested .28 percent alcohol. At trial, defendant testified that around 8:00 p.m. that night defendant had a couple beers with his wife at home. He stated a man came over around 10:00 p.m. to talk about the possibility of the man obtaining one of defendant's dog's puppies. Defendant said he had no beers other than what he drank with his wife earlier. He also stated he has difficulty speaking because in his throat he has a three-quarter-inch hole which resulted from an operation for cancer of the larynx. After dropping the man off on Clark Avenue, defendant admitted that he forgot to turn on his headlights. He denied that the officers ever asked him to say the alphabet or to do a one-leg stand. The jury returned a verdict of guilty on the first count of operating a vehicle while under the influence of alcohol in violation of Municipal Ordinance 433.01(A)(1) and guilty on the second count of operating a vehicle with more that fourteen- hundredths of one gram or more by weight of alcohol per one- hundred milliliters in his urine in violation of Municipal Ordinance 43.01(A)(4). The trial judge then found defendant guilty of the third count: driving with a willful and wanton disregard for safety. This conviction on the third count is not challenged on appeal. Defendant timely appealed raising four assignments of error. Defendant's first assignment states as follows: - 5 - I. THE TRIAL COURT ERRED IN PREVENTING DEFENSE COUNSEL FROM ARGUING OR PRESENTING EVIDENCE AS TO FALSENESS OF SWORN STATEMENTS MADE BY POLICE OFFICERS. In this assignment defendant argues that the trial court erred by not allowing him to cross-examine the police officer regarding the officer having signed an ALS form stating that defendant was tested and found to have a prohibited concentration of alcohol in his blood. Defendant takes issue with the officer signing this form, because on the date the form was signed, June 23, 1995, the results of the urine test were not yet known. The results of the urine analysis were dated June 26, 1995. Defendant wished to impeach the officer at trial by confronting him with the fact that he stated defendant was found to have a prohibited concentration of alcohol before this fact was known. The relevant portion of the ALS form which was signed by Officer Thevenin states as follows: I, hereby certify that I have placed the above person under arrest, having had reasonable grounds to believe that this person was operating vehicle upon the public highways and/or upon any public or private property used by the public for purposes of vehicular travel or parking in this state under the influence of alcohol and/or drugs of abuse. I further certify that this person, after having been advised in the prescribed manner, of the consequences of a refusal or test, did refuse to submit to the designated (insert type test - blood, breath, or urine) not chemical test when requested to do so or submitted to the test and was found to have a prohibited concentration of alcohol. (Emphasis added.) The trial court found nothing wrong with this statement and would not permit defense counsel to raise the issue in opening statement or to impeach Officer Thevenin with this statement on cross-examination. - 6 - We agree with defendant that the trial court erred by not allowing defendant to cross-examine Officer Thevenin about signing the statement before he knew the results of the urinalysis; however, this error is harmless. To warrant a reversal, defendant has the burden to establish error and to establish that such error was prejudicial. State v. Siebert (1994), 98 Ohio App.3d 412; Crim.R. 52(A). In order for an error to be nonprejudicial, and thus harmless, the error must be harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 26; State v. Williams (1983), 6 Ohio St.3d 281, 286. In the case at bar there was overwhelming evidence of defendant's guilt. In order to obtain a conviction for 433.01(A)(1), the state must prove that defendant was operating a vehicle with a concentration of fourteen-hundredths (0.14) of one gram of alcohol per 100 milliliters of his urine. The urine test revealed defendant had a concentration of twenty-eight (0.28) hundredths of alcohol per 100 milliliters of urine. Testimony at trial further showed that defendant was observed driving with no lights at 12:30 a.m., weaving, and making a left turn from the far right lane. After they pulled him over, the officers noticed a strong odor of alcohol. Defendant was unable to say the alphabet and his speech was slurred. He needed support to perform the one-leg stand test. On the Alcohol Influence Form, the arresting officer checked the box indicating defendant was unfit to drive. Thus the jury was presented with substantial - 7 - evidence to establish defendant's guilt. Accordingly, defendant's inability to impeach Officer Thevenin concerning the ALS form is harmless beyond a reasonable doubt. This assignment is overruled. Defendant's second assignment states as follows: II. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF BLOOD ALCOHOL CONTENT WHEN THERE WAS NEITHER A CHAIN OF CUSTODY ESTABLISHED AS TO THE SAMPLE, NOR EVIDENCE THAT THE SAMPLE HAD BEEN PROPERLY STORED, ALL IN VIOLATION OF APPLICABLE OHIO HEALTH REGULATIONS. In this assignment, defendant contends that the trial court erred by admitting evidence of the blood alcohol content. This assignment is meritless. "[T]he sole and proper mode of raising an objection to the admissibility, as distinguished from the weight, of an intoxilyzer test is by motion to suppress prior to trial and *** in the absence of such a motion any objection to admissibility is waived." State v. Collins (1985), 26 Ohio App.3d 205. (Citations omitted.) In the case at bar, defendant did not move to suppress the urine test results. Defendant moved only to dismiss and did not raise the issue that the urine test results were inadmissable prior to trial. Accordingly, any argument that the court erred by admitting the urine test results is waived and this assignment is overruled. Defendant's third assignment states as follows: III. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S RULE 29 MOTIONS TO DISMISS, AND THE JURY VERDICT WAS FURTHER AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant challenges the weight and sufficiency of the evidence. When reviewing a Crim.R. 29(A) - 8 - motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds cannot convict, a Crim.R. 29(A) motion must be granted, the charges should be dismissed, and the case should not go to the jury. Id. The separate and distinct standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. The evidence presented at trial satisfies either test. As stated in the first assignment, defendant's driving was erratic (illegal turn, weaving, no headlights at night), defendant's physical capabilities were impaired (inability to stand on one leg, inability to complete alphabet), the arresting officers noticed a strong odor of alcohol coming from defendant, and defendant tested for twice the legal amount of alcohol in his - 9 - urine. This evidence, when viewed in a light most favorable to the prosecution, is sufficient to overcome a Rule 29 motion. Additionally, it cannot be said that the jury, in rendering a guilty verdict, clearly lost its way and created a manifest miscarriage of justice. This assignment is overruled. Defendant's fourth assignment states as follows: IV. THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE UNDER THE DOUBLE JEOPARDY PROVISIONS OF THE UNITED STATES AND OHIO CONSTITUTIONS, AS DEFENDANT HAD PREVIOUSLY BEEN PUNISHED FOR THE WITHIN OFFENSE UNDER AN ADMINISTRATIVE LICENSE SUSPENSION (ALS) ISSUED BY THE ARRESTING OFFICER. The Ohio Supreme Court recently clarified that "[t]he Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution do not preclude criminal prosecution and trial of motorists for driving in violation of R.C. 4511.19 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191." State v. Gustafson (1996), 76 Ohio St.3d 425, paragraph one of the syllabus. Accord City of Brook Park v. Carter (Sept. 26, 1996), Cuyahoga App. No. 69796, unreported. However, the court noted in paragraph three of the syllabus that "[f]or purposes of determining the protection afforded by the Double Jeopardy Clauses of the United States and Ohio Constitutions, an administrative license suspension imposed pursuant to R.C. 4511.191 ceases to be remedial and becomes punitive in nature to the extent the suspension continues subsequent to adjudication and sentencing for violation of R.C. 4511.19." - 10 - The record in this case contains nothing to indicate that the administrative suspension of defendant's license continued beyond the date he was sentenced for his conviction of R.C. 4511.19(A)(3). This is not surprising because defendant did not even raise this claim in the municipal court or supplement his argument in this court following the Supreme Court's opinion in Gustafson. It is well settled that constitutional decisions should not be made "until the necessity for a decision arises on the record before the court." Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28, n. 6. As a result, 1 we decline to speculate on any remaining issues. 1 Because we decline to express any opinion concerning the merits of this issue, defendant is not foreclosed from raising this matter without prejudice in the trial court. - 11 - 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. HARPER, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .