COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71078 : CITY OF BEACHWOOD : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION MARIANNE MEG BROWN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 4, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Shaker Heights Municipal Court Case No. 18131 A-B JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS F. GREVE, ESQ. JOHN F. NORTON, ESQ. Prosecuting Attorney 1202 Bond Court Building City of Beachwood 1300 East 9th Street RADEMAKER, MATTY, McCLELLAND & Cleveland, Ohio 44114 GREVE 1775 Illuminating Building 55 Public Square Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant Marianne Brown appeals from her municipal court jury convictions for operating her motor vehicle while (1) she was under the influence of alcohol and (2) her urine alcohol concentration was in excess of legal limits. Following a traffic stop on January 29, 1996, defendant was charged in the Shaker Heights Municipal Court with weaving, driving under the influence of alcohol, and driving with a prohibited urine alcohol concentration in violation of Beachwood 1 Codified Ordinances. B.C.O. Sections 432.32, 434.01(a)(1) and 434.01(a)(4), respectively. Immediately after the stop, Officer Roger Martin smelled alcohol about defendant's person. She was unable, moreover, to complete the alphabet and failed a series of physical coordination field sobriety tests. Furthermore, in response to his request for her driver's license, defendant produced a bank or credit card with her photograph. After her arrest, defendant twice blew into a breathalyzer machine at the police station operated by Officer Gerald Character, but the device did not complete the test with a printout. Character testified that the BAC Datamaster was operating properly and that its digital monitor displayed breath alcohol readings of .18 and .185 before defendant stopped 1 Defendant was charged with weaving and driving under the influence that evening. When the coroner's test revealed that the urine sample she provided after her arrest exceeded lawful limits, she was subsequently charged with driving with a prohibited urine alcohol concentration. - 3 - blowing. As a result, the police requested a urine sample, which defendant provided to Officer Denise Winebrenner. It revealed an alcohol concentration (thirty-two hundredths) substantially in excess of the legal maximum (fourteen hundredths per gram by weight per hundred milliliters of urine). Defendant pleaded not guilty to the three charges and filed 2 an untimely motion to suppress evidence. The case ultimately proceeded to a jury trial on May 24, 1996, after the court denied the motion. The jury acquitted defendant of the weaving offense but found her guilty of driving under the influence of alcohol and of driving with a prohibited urine alcohol concentration. The trial court entered judgment on the jury verdict and sentenced defendant on only the driving-under-the-influence charge. For this charge the court sentenced her to thirty days in jail, fined her $600 in addition to court costs, and suspended her license for 365 days, but granted her certain driving privileges. The trial court thereafter suspended execution of her term of incarceration subject to various conditions, including that she complete an alcohol program and not drink alcohol during her probation. On appeal, defendant has filed only a partial record of the trial proceedings. Specifically, the record on appeal does not contain the videotape of defendant taking the breath alcohol 2 Defendant's motion did not seek to suppress the results of the breath alcohol tests. Rather, the motion specifically sought to suppress only "the results of the urinalysis and performance tests administered to defendant by the State of Ohio, together with the video tape film of defendant." - 4 - tests, the results of which were presented during trial to the jury. Moreover, the partial transcript notably omits, at a minimum, all testimony of Officer Martin, who arrested defendant, the direct testimony of Officer Winebrenner, who testified concerning defendant's urine sample, the cross-examination of defendant, and the testimony of Alfred Staubus, one of defendant's expert witnesses. The record likewise does not contain the exhibits introduced into evidence at trial. Defendant timely appeals, raising the following sole assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ALLOWED THE PROSECUTOR TO INTRODUCE INCOMPETENT HEARSAY EVIDENCE ON A MATERIAL ISSUE IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION AND IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. This assignment lacks merit. Defendant argues that the trial court improperly admitted into evidence statements by Officer Character which recited the results of her two incomplete breath alcohol tests. During trial defendant orally argued a motion in limine on the record, out of the hearing of the jury, that the test results were not admissible for any purpose because the tests were not completed. The trial court denied the motion after defense counsel stated he would raise the objection at trial "for purposes of preserving the record." (Tr. 4.) Waiver The Ohio Supreme Court has held that the proper procedure for challenging the admissibility of testimony concerning breath - 5 - alcohol tests is by timely pretrial motion to suppress the evidence. Defiance v. Kretz (1991), 60 Ohio St.3d 1, 5. Defendant waived any objection to the evidence in this case by failing to comply with this procedure. As noted above, defendant's motion to suppress was untimely. Moreover, the breath alcohol test results were not among those items the motion specifically requested to exclude. See n.2. If defendant had any doubt concerning whether the prosecution intended to introduce this evidence, she should have resolved the matter prior to trial under Crim.R. 12(D). We note that even if this matter were sufficiently raised by defendant's mid-trial motion in limine, the argument is unpersuasive. Defense counsel's entire argument for excluding this evidence was as follows: *** It is the position of the Defendant that an incomplete test is just that, incomplete and not admissible for any purpose. (Tr. at 3.) Defense counsel thereafter made general objections and motions to strike the testimony, without further explanation, before and after Officer Character testified concerning the two breath alcohol tests. Defendant now contends for the first time on appeal that Officer Character's statements concerning the tests constitute inadmissible "hearsay." Defendant also argues that the police did not comply with statutory and administrative requirements to permit the admission of this evidence. However, nowhere in the - 6 - record of proceedings in the trial court did defendant clearly raise these arguments. Evid.R. 103(A)(1) expressly provides that claims of error in the admission of evidence are waived unless the aggrieved party raises the specific ground in a timely objection at trial. The purpose of this requirement is to provide an opportunity for the opponent to respond and for the trial court to make an informed evidentiary ruling to correct any error which may arise from admitting the challenged evidence. Thus defendant waived any claim of error by failing to specify on the record that "hearsay" evidence was the basis of his objection. This omission is especially noteworthy in defendant's motion in limine because defendant's counsel gave reasons on the record. The basis of her claim is not otherwise apparent from the context to excuse her failure to raise this issue. Trial courts should not be required to guess concerning the legal basis of a party's argument to make evidentiary rulings. It is well established that reviewing courts will not reverse evidentiary rulings, even when objections are properly raised, absent a showing that (1) the trial court clearly abused its discretion and (2) the aggrieved party suffered material adverse prejudice. State v. Withers (1975), 44 Ohio St.2d 53, 55. Neither of defendant's arguments satisfies this standard in this case. Hearsay - 7 - Even if defendant had sufficiently raised her hearsay claim and it were not waived, the trial court could properly have concluded that the challenged testimony did not constitute hearsay. "Hearsay" is defined by Evid.R. 801(C) as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." The challenged testimony does not clearly satisfy this definition, because the testimony was not offered to prove the truth of the matter asserted, that is, that defendant had a breath alcohol concentration of .18 or .185 or higher. Defendant was not charged with any breath alcohol concentration offense and the precise level of her breath alcohol concentration was not directly relevant to any issue in the case. Rather, the fact that the breath tests were undertaken but not completed from an otherwise properly functioning machine established Officer Character's basis for requesting defendant to undergo a urine alcohol test. He explained that, from all the evidence available to him at the time, he believed that defendant purposely avoided completing the breath test by breathing erratically and that she had consumed and was impaired by alcohol while operating her vehicle. The evidence was admissible for this purpose, that is, to explain, in part, why he proceeded to request a urine test. Even if the information could also be construed to constitute hearsay as defendant argues, she should have requested a limiting instruction to the jury under Evid.R. 105 concerning the proper use of this evidence. - 8 - Compliance with Statutory and Administrative Requirements Defendant also argues that her vague statement at trial sufficiently preserved the argument that the test results did not substantially comply with the requirements of the Ohio Revised Code and Administrative Code for admissibility into evidence. For the first time on appeal, she cites R.C. 4511.19(D) and O.A.C. 3701-53-02(B), in support of this argument. Defendant argues that to be admissible under R.C. 4511.19(D), breath alcohol tests must comply with administrative regulations. O.A.C. 3701-53-02(B) requires that the BAC Datamaster used in this case comply with a specific operational checklist, which, in turn, requires a "test result." Defendant argues that no such "test result" exists in this case and that the numbers on the digital display are not admissible because the machine did not print the results on paper. Even if this argument could have been gleaned from the cursory objection at trial and were valid, defendant has failed to show, however, reversible error. No Prejudice We are unable to find prejudice under the circumstances of this case, even if Officer Character's statements concerning the digital readouts were not admissible for any purpose, as defendant argues. It is well established that defendant bears the burden of demonstrating reversible error. App.R. 9 and 10. It is difficult, if not impossible, to evaluate her claim of prejudice without a complete transcript of the evidence presented in this case. See e.g., Crowder v. Rice (Aug. 11, 1993), - 9 - Montgomery App. No. 13703, unreported at p.4. Defendant is responsible for the inadequacy of the record, because she expressly withdrew her request for a complete transcript and has filed only a partial transcript of the evidence on appeal. The Ohio Supreme Court has recently stated that "[a] criminal defendant must suffer the consequences of nonproduction of an appellate record when such nonproduction is caused by his or her own actions." State v. Jones (1994), 71 Ohio St.3d 293, 297. Other courts have reached the same result in the context of improperly admitted alcohol tests under the harmless error doctrine. Crim.R. 52(A) and Evid.R. 103. State v. Casaday (1987), 40 Ohio App.3d 52, 55-56; accord Mentor v. Kennell (1992), 83 Ohio App.3d 637, 641. Defendant essentially requests this court to find reversible error based on an incomplete record in which much of the testimony elicited by the prosecution, as well as the police booking videotape and exhibits presented to the jury at trial, has not been provided. The partial record shows that defendant was stopped while driving to her third restaurant/bar on January 26, 1996 and admitted to drinking a substantial amount of alcohol prior to the traffic stop. During trial she specifically admitted to drinking four "tall" vodka and tonics at the first bar from approximately four to eight hours prior to the stop. She also admitted to drinking "not even two-thirds" of a glass of Merlot wine approximately one-half hour before the incident. Defendant testified that she was five feet one inch tall, weighed ninety- - 10 - three pounds, and ate only a banana and sandwich for lunch approximately nine hours earlier. She did not dispute that she produced some form of a bank card in response to Officer Martin's request for her driver's license at the stop and that she was unable to perform satisfactorily a series of physical coordination field sobriety tests. The partial transcript reveals that the jury also observed a videotape of defendant at the police station (Tr. 15, 19 and 47), but this tape, which she had sought to suppress, was not provided on appeal. Finally, in addition to this evidence of impairment, it is undisputed and defendant's own expert Williams acknowledged that her urine alcohol sample exceeded lawful 3 limits. In support of her argument to the contrary, defendant places 4 great reliance on testimony of her expert, who indicated that the alcohol concentration accumulated in her bladder because she had not urinated for almost thirteen hours prior to her arrest. This argument, however, makes no difference. The urine alcohol 3 The expert retained by defendant testified that the portion of the urine sample that he tested registered .27 per cent at the time he tested it, rather than the .32 per cent indicted by the state shortly after the sample was taken. There were several possible reasons to explain the difference in test results. Regardless of the exact urine alcohol concentration, the test by the defense expert registered approximately twice the lawful limit and this result supported defendant's conviction for the offense of operating with an excessive urine alcohol concentration. 4 Defendant's brief on appeal refers to expert testimony by Alfred Staubus and Robert Williams. However, the partial transcript on appeal contains the testimony of only Williams and no testimony from Staubus. - 11 - ordinance makes it a criminal offense per se to drive a vehicle with a prohibited urine alcohol concentration. To establish this offense, the prosecution was not required to establish that she was also impaired by alcohol or that such alcohol was contemporaneously in her bloodstream. The Ohio Supreme Court rejected this argument in State v. Boyd (1985), 18 Ohio St.3d 30, when it held that evidence defendant was not intoxicated was "totally irrelevant" to the charge that he operated a vehicle with a prohibited alcohol content. Finally, even if the jury believed defendant's testimony that she had not urinated for such an extended period of time and also believed her expert's testimony that such an elevated result did not indicate any current impairment, the incomplete record contains abundant evidence to support the jury's finding that she was driving under the influence of alcohol. Under the circumstances, it is pure speculation that the admission of the challenged testimony concerning defendant's breath alcohol content resulted in any prejudice or contributed to the jury verdict. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. - 12 - 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 Shaker Heights 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. O'DONNELL, P.J., and LEO M. SPELLACY, 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 .