COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70809 CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION STEVEN J. RHODES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 9, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 96-TRC-00241 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: ANN M. FEIGHAN, ESQ. JAMES A. LEVIN, ESQ. Assistant City Prosecutor LEANNE S. LARIMER, ESQ. GEORGE A. PACE, ESQ. 530 Euclid Avenue, Ste. 200 First Asst. City Prosecutor Cleveland, Ohio 44115-1125 8th Floor Justice Center and 1200 Ontario Street JAMES G. CORRIGAN, ESQ. Cleveland, Ohio 44113 1520 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 2 PATRICIA ANN BLACKMON, P.J.: Steven Rhodes, defendant-appellant, appeals from the decision of the trial court convicting him of driving under the influence, operating a motor vehicle without headlights, and speeding and sentencing him accordingly. Rhodes assigns the following five errors for our review: I. THE TRIAL COURT ERRED IN NOT REQUIRING THE CITY TO PRODUCE THE REFUSAL FORMS AND BREATHALYZER PRINTOUTS AS REQUESTED BY APPELLANT. II. THE TRIAL COURT ERRED IN NOT ALLOWING APPELLANT TO CROSS-EXAMINE CITY'S WITNESSES AS TO THE PROPER OPERATION OF THE BREATHALYZER. III. THE TRIAL COURT ERRED IN ADMITTING CITY'S EXHIBIT 3 INTO EVIDENCE OVER APPELLANT'S OBJECTION. IV. THE JURY VERDICT OF GUILT AGAINST THE APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. V. THE TRIAL COURT ERRED IN ALLOWING CITY TO REHABILITATE ITS WITNESS WITH PRIOR CONSISTENT STATEMENTS AFTER HE HAD BEEN IMPEACHED BY PRIOR INCONSISTENT STATEMENTS. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On January 9, 1996 at approximately 1:00 a.m., Cleveland Police Officers Virgil Williams and Richard Thevenin spotted Steven Rhodes, defendant-appellant, driving without his headlights illuminated. The officers made a U-Turn to follow Rhodes. Gauging Rhodes' speed by the speed of their patrol car, they determined that Rhodes was traveling at a rate of about 45 miles per hour in 3 a 25 mile per hour zone. The officers activated their lights and sirens but Rhodes continued driving. Williams and Thevenin cut in front of Rhodes' car to force him to stop and another patrol car pulled in back of him. Williams approached the driver's side of the car. As he talked to Rhodes, he detected a strong odor of alcohol. He also noticed Rhodes' eyes were glassy and bloodshot. Thevenin removed Rhodes' passenger from the car. After a quantity of marijuana was found on the passenger side floor board, the passenger was arrested. Thevenin then went to assist Williams. Thevenin also noticed Rhodes was glassy-eyed and had a strong odor of alcohol on his breath. Williams gave Rhodes several field sobriety tests, all of which Rhodes failed. Rhodes was subsequently arrested and taken to the police station. Thevenin took Rhodes into a small room for a Breathalyzer test. The test was administered by Officer Jeffrey Ryan who instructed Rhodes on what to do and advised him that if he stopped blowing into the tube or sucked the air out of the tube, it would be counted as a refusal. Rhodes began blowing into the machine, then stopped. Ryan advised Rhodes that he was not blowing into the machine. Rhodes again blew into the machine, then stopped. The machine registered an invalid sample. Ryan advised Rhodes he would get one more chance to take the test. Rhodes initially agreed to be retested, but once the machine was ready for the test, he refused. Thereafter, he began yanking on the machine's air hose and yanked the machine off the table. As 4 the machine fell to the floor, Rhodes fell backwards to the floor. As he fell, Rhodes was hit in the head by the Breathalyzer machine. After a brief struggle, Rhodes was handcuffed and taken to the hospital where he received several stitches for a laceration of his forehead. Rhodes was charged with speeding, failure to use headlights at night, operating a motor vehicle while under the influence of alcohol or the combined influence of alcohol and/or any drug of abuse. At trial, Rhodes denied refusing to take the Breathalyzer test and claimed that the cut on his head was caused when one of the officers shoved him forward into the Breathalyzer machine. At the end of the trial, Rhodes moved for a mistrial and argued that the court's failure to order the City to produce the administrative form documenting Rhodes' refusal of the Breathalyzer test and the computer printout from the unsuccessful Breathalyzer test attempt was wrongful. The motion was denied. Rhodes was convicted and sentenced to ninety days in jail and fined five hundred dollars for driving under the influence. The trial court suspended $200.00 of the fine and eighty-seven days of the jail sentence and sentenced him to one year of probation. He was also fined $20.00 for speeding and $10.00 for the failure to use headlights. This appeal followed. In his first assignment of error, Rhodes argues the trial court erroneously refused his request for the City to produce the results of his Breathalyzer test and the forms indicating his refusal to submit to chemical testing. Rhodes argues the test 5 results were exculpatory evidence that was material to his case. We disagree. Rhodes was convicted of violating Cleveland Codified Ordinance 433.01(A)(1) that prohibits a person from operating any vehicle if he is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. By its terms, the statute does not require a specific level of alcohol to be present in the breath. In such cases, the behavior of the driver is the relevant factor. Mentor v. Kennell (1992), 83 Ohio App.3d 637, 641. Cleveland police officers Williams, Thevenin, and Ryan all observed Rhodes' behavior on the night of his arrest and described the strong odor of alcohol on his breath, and his glassy, bloodshot eyes. Williams also testified that Rhodes was unable to recite the alphabet, walk a straight line heel-to-toe, or balance himself on one leg during field sobriety tests. Ryan described Rhodes' gait as staggered. This testimony was sufficient to support a finding that Rhodes was under the influence of alcohol. Rhodes argues the printout from the Breathalyzer test was exculpatory evidence that could have helped the defense. However, in State v. Bakst (1986), 30 Ohio App.3d 141, the court held that, even where intoxilyzer results are insufficient to prove driving with a prohibited breath alcohol concentration, a driver could still be convicted of driving under the influence of alcohol. Finding no prejudice to Rhodes from the absence of the printout, we overrule his first assignment of error. 6 Rhodes next argues the trial court erred by not allowing him to cross-examine the City's witnesses about proper operation of the Breathalyzer. As discussed above, the Breathalyzer results were not relevant to proving Rhodes guilty of violating Cleveland Codified Ordinance 433.01(A)(1) and no such results were entered into evidence against him. Accordingly, Rhodes was not prejudiced by the trial court's failure to allow him to inquire about the operation of the Breathalyzer machine. Rhodes' second assignment of error is overruled. In his third assignment of error, Rhodes argues the trial court erred in allowing the City's alcohol influence report form (Exhibit 3) into evidence. Although Evid.R. 901 provides that testimony of a witness with knowledge can be enough to show that an exhibit is what its proponent claims it to be, Officer Thevenin was not qualified to authenticate it because he had no knowledge of the field sobriety tests performed on Rhodes by Officer Williams. However, in State v. Brooks (1995), 101 Ohio App.3d 260, 264, the court held that exhibits could be authenticated by evidence sufficient to support a finding that the document is what its proponent claims. In this case, Thevenin was on the scene while the sobriety tests were being administered. Thevenin and Williams testified that they discussed the field sobriety tests and split up the paperwork between them in order to facilitate D.U.I. arrests. Thevenin testified that he filled out the alcohol influence report form and signed it. We conclude the document was sufficiently 7 authenticated to make it admissible and we overrule Rhodes' third assignment of error. In his fourth assignment of error, Rhodes argues his conviction was against the manifest weight of the evidence. Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing Black's Law Dictionary (6th Ed. 1990), 1433, 1594. The Supreme Court went on to state the following: When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the fact finder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. At 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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 such 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. Id. 8 Consequently, our role is to review the evidence and determine if the weight of the credible evidence was in Rhodes' favor. After reviewing the record, we conclude that the jury in resolving the conflicting evidence did not lose its way. In fact, the evidence weighed strongly against Rhodes. The evidence revealed that Rhodes was speeding at night without headlights. When police officers confronted Rhodes, they noticed his eyes were glassy and bloodshot, and he smelled strongly of alcohol. Rhodes failed the field sobriety tests administered at the scene, and his walk was staggered. This evidence supports the jury's decision to convict Rhodes. His fourth assignment of error is overruled. In his fifth assignment of error, Rhodes argues the court erroneously allowed the city to rehabilitate the testimony of Officer Thevenin after Thevenin's testimony was impeached by prior inconsistent statements. Evid.R. 801(D)(1)(b) allows for the admission of prior consistent statements that are consistent with a witness' testimony and offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. During his opening statement, Rhodes' trial counsel argued that no field sobriety tests were given. Rhodes testified that he was never given any field sobriety tests. On redirect, the city properly used prior consistent statements to rehabilitate Thevenin's testimony about the field sobriety tests. The City also introduced prior testimony about the attempted Breathalyzer test and about how Rhodes received the cut on his 9 head. Rhodes raised no objection to the testimony and has, therefore waived his right to assert it as error on appeal.1 See State v. Williford (1990), 49 Ohio St.3d 247, 251 (errors which are not brought to the attention of the trial court by objection or otherwise are waived and may not be raised on appeal absent plain error.) Even assuming, arguendo, that Rhodes raised a timely objection to the use of the transcript, there is no indication that he was prejudiced by the testimony, especially since, even without any testimony as to the Breathalyzer test or how he received the cut on his head, the state still produced enough evidence to support Rhodes' conviction for driving under the influence of alcohol. Rhodes' fifth assignment of error is overruled. Judgment affirmed. 1Rhode s did not object when the City asked Thevenin to read from the Feb. 22 hearing transcript. He objected only when the city asked Thevenin if his testimony at trial about how Rhodes cut his head was consistent with his testimony at the prior hearing. (Tr. 173.) At the end of the city's evidence, Rhodes stated I strongly object to the City's use of that transcript for rehabilitation (Tr. 208) but his objection was not timely since the evidence had already been read into the record. 10 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. DAVID T. MATIA, J., and ROCCO, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .