State v. McKee

[This decision has been published in Ohio Official Reports at 

.]




             THE STATE OF OHIO, APPELLANT, v. MCKEE, APPELLEE.
                       [Cite as State v. McKee, 

.]
Evidence—Witnesses—Experience and knowledge of a drug user lay witness can
        establish competence to express an opinion on the identity of a controlled
        substance, when.
  (Nos. 00-523 and 00-953—Submitted December 12, 2000—Decided April 11,
                                           2001.)
  APPEAL from and CERTIFIED by the Court of Appeals for Marion County, No.
                                          9-99-57.
                                  __________________
                               SYLLABUS OF THE COURT
The experience and knowledge of 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.
                                  __________________
        FRANCIS E. SWEENEY, SR., J.
        {¶ 1} Defendant-appellee, Cassandra N. McKee, was indicted on two
counts of corrupting another with drugs, in violation of R.C. 2925.02. At her trial,
two girls, Tiffany Friar and Melissa Austin, ages thirteen and fourteen at the time
of the alleged crime, testified that appellee, the girlfriend of Tiffany’s father, shared
a marijuana joint with them while they were traveling in appellee’s car.
        {¶ 2} The incident was discovered when Tiffany wrote a note to another
friend, Stacy Cole, and mentioned that she might obtain marijuana from appellee.
Stacy’s mother found this note in Stacy’s bookbag and gave it to Tiffany’s mother.
Tiffany’s mother contacted the sheriff’s department. An investigation ensued, and
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these charges were brought against appellee. Based upon this evidence, the jury
convicted appellee as charged.
       {¶ 3} Upon appeal, the court of appeals reversed appellee’s convictions,
finding no evidence that the substance involved was marijuana after excluding the
girls’ testimony identifying it. However, finding its judgment in conflict with that
of the Fifth District Court of Appeals in State v. Coffey (Oct. 16, 1995), Delaware
App. No. 94CAA11036, unreported, 

 (where the court upheld the
use of lay testimony to prove that a substance furnished to minors was marijuana),
the appellate court entered an order certifying a conflict. The cause is now before
this court upon our determination that a conflict exists (case No. 00-953) and
pursuant to the allowance of a discretionary appeal (case No. 00-523).
       {¶ 4} The appellate court certified the following issue for our review and
resolution: “Is there insufficient evidence as a matter of law to convict a defendant
for corrupting another with drugs in violation of R.C. 2925.02, when the alleged
drug in question is marihuana, and at trial there is no expert witness or laboratory
analysis presented to identify the substance alleged to be marihuana, and the only
identification of the substance is the testimony of the juveniles who allegedly
smoked the substance?” While we affirm the court of appeals’ decision reversing
appellee’s convictions, we do not believe the issue as framed is dispositive of the
case. Because we believe that lay opinion testimony, if properly qualified, may be
sufficient to sustain a conviction, we necessarily answer the certified question in
the negative.
       {¶ 5} Appellee was convicted of two counts of corrupting another with
drugs in violation of R.C. 2925.02(A)(4)(a), which provides, “No person shall
knowingly … [f]urnish or administer a controlled substance to a juvenile who is
at least two years the offender’s junior, when the offender knows the age of the
juvenile or is reckless in that regard.” Of these elements, the only one in dispute is
that the substance in issue was marijuana, a controlled substance according to R.C.




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3719.41 Schedule I, (C)(17). The state offered the testimony of the girls to prove
this element of the offense.
        {¶ 6} Appellant, the state of Ohio, initially contends that this issue was not
preserved for appeal because the defense failed to object to the girls’ testimony at
trial or to raise the issue before the court of appeals. Errors that arise during a trial
that are not brought to the attention of the court are ordinarily waived and may not
be raised on appeal unless there is plain error, i.e., but for the error, the outcome of
the trial clearly would have been otherwise. Crim.R. 52(B); State v. Johnson
(2000), 

, 

. We find this case
appropriate for a plain-error review. Because there was no additional evidence
concerning the identification of the substance, the result of the trial would have
been different if the girls’ testimony had been excluded.
        {¶ 7} Having determined that the issue is properly before us pursuant to the
plain-error rule, we must decide whether a person can be convicted for corrupting
another with drugs, in violation of R.C. 2925.02, based on identification of the
controlled substance solely by the person to whom the substance was given.
        {¶ 8} The state argues that under either Evid.R. 701 or Evid.R. 702, the
girls’ testimony was properly admitted.          Appellee, however, maintains that
according to State v. Maupin (1975), 

, 

, 

, Ohio law requires either laboratory analysis or other expert testimony to prove
the identity of the drug. Since the record does not establish that the girls were more
than novice users, they could not be considered experts. Thus, in the absence of
laboratory testing or expert testimony, appellee argues, the state failed to prove its
case.
        {¶ 9} Maupin does not fully answer the issue here. In Maupin, the court was
asked to decide whether scientific analysis is required for the identification of the
substance. In concluding that it is not, the court first determined that a drug may
be identified by circumstantial evidence. 

, 

                                  SUPREME COURT OF OHIO




488-489, 

. Yet the court recognized that the identity of a
controlled substance is beyond the common experience and knowledge of juries.

 At the time Maupin was decided, the Rules of Evidence, which govern lay and
expert testimony, had yet to be adopted.                 Therefore, the court followed the
established common law and held that expert testimony in some form is required.
In this regard, the court considered cases where experienced police officers or drug
addicts had been found to be experts and cases where casual drug use was found
insufficient for qualification. Based upon these cases, the court concluded that the
police officer’s testimony in question was properly admitted as expert testimony.

         {¶ 10} However, since the adoption of the Rules of Evidence, both on the
state and federal levels,1 many courts have used an Evid.R. 701 analysis and have
allowed lay witnesses to testify about the identity of a drug. For example, in United
States v. Westbrook (C.A.8, 1990), 

, the court permitted lay testimony
from two witnesses who used the substance at issue and had extensive experience
with that type of drug. See, also, United States v. Osgood (C.A.5, 1986), 

 (prior use); United States v. Harrell (C.A.11, 1984), 

(prior use). See, also, State v. Watson (1989), 

, 

. Ohio Evid.R. 701 parallels Fed.R.Evid. 701 before its recent December 2000 amendment.
Fed.R.Evid. 701 was amended to “eliminate the risk that the reliability requirements set forth in
Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness
clothing.” Note of the Judicial Conference Committee on Rules of Practice and Procedure, reprinted
in 

, 416. The amendment provides: “If the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding
of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” The italicized portion of
the rule is new. The amendment now serves to channel testimony that is actually expert testimony
to Fed.R.Evid. 702 and ensures that a party will not evade disclosure of expert witnesses by simply
calling an expert witness in the guise of a layperson. Committee Note, supra, 192 F.R.D. at 416.
However, the amendment is not intended to affect either the prototypical types of evidence
contemplated by Fed.R.Evid. 701 or, more important, the cases that have permitted lay witnesses to
testify that a particular substance appeared to be a narcotic. Committee Note, supra, 192 F.R.D. at
417.




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                                January Term, 2001




146 (lay witness’s identification of drugs is common); Swain v. State
(Okla.Crim.App.1991), 

 (lay testimony sufficient to identify
marijuana). Courts have considered familiarity with effects of a drug coupled with
similar effects from the substance at issue.         See, e.g., State v. Chatman
(La.App.1992), 

; People v. Garcia (1985), 

, 

. Finally, see State v. Haller (1987), 

, 

 (recognizing that many federal courts have held that
drug abusers or addicts may possess sufficient qualifications to identify narcotics).
All these cases, however, recognize the importance of a foundation of sufficient
familiarity with the substance to support the opinion. To understand why a
foundation is necessary before this testimony is admitted, it is important to consider
the language of Evid.R. 701 and its jurisprudence.
       {¶ 11} Evid.R. 701 provides:
       “If the witness is not testifying as an expert, his testimony in the form of
opinions or inferences is limited to those opinions or inferences 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.”
       {¶ 12} At common law, lay witnesses were required to testify to facts rather
than opinions. However, the practical possibility of distinguishing between fact and
opinion proved to be elusive, if not impossible to draw, and led to extensive
litigation and pervasive criticism by commentators. Blanchard & Chin, Identifying
the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting
Visual Identification of Indescript White Powder in Narcotics Prosecutions (1998),
47 Am.U.L.Rev. 557, 575; Asplundh Mfg. Div. of Asplundh Tree Expert Co. v.
Benton Harbor Eng. (C.A.3, 1995), 

, 1195. Consequently, former
Fed.Evid.R. 701, upon which Ohio Evid.R. 701 is based, was adopted, and it
“obviated the common law requirement for rigid compartmentalization of lay
witness testimony into fact or opinion.” 47 Am.U.L.Rev. at 575. Although at first




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Evid.R. 701 contemplated testimony about such ordinary things as the color, speed,
type of vehicle, identity of a person, a person’s health, age, or appearance, or even
testimony regarding a person’s sanity or intoxication under controlled situations,
Weissenberger, Ohio Evidence 2001 Courtroom Manual (2000), 275, as case law
developed, the rule was interpreted to allow for “ ‘ “shorthand renditions” of a total
situation, or [for] statements of collective facts.’ ” Asplundh Mfg., 57 F.3d at 1196,
quoting 1 McCormick, Evidence (4 Ed.1992) 44, fn. 16. Although the line between
fact and opinion began to blur, all these situations met the core requirements—that
the opinion is rationally based upon personal knowledge and is helpful to the trier
of fact. Id. at 1198. Moving further from this core of “shorthand statements,”
courts began to permit witnesses with firsthand knowledge to offer lay opinion
testimony “where they have a reasonable basis – grounded either in experience or
specialized knowledge – for arriving at the opinion expressed.” Id. at 1198. Before
this type of opinion testimony has been allowed, however, the trial court has made
an initial determination that the witness possessed sufficient experience or
specialized knowledge, thus satisfying the rule’s requirements that the opinion be
both “helpful to a clear understanding … of a fact in issue” and “rationally based”
upon the witness’s perception. Id.
        {¶ 13} It is consistent with this emerging view of Evid.R. 701 that courts
have permitted lay witnesses to express their opinions in areas in which it would
ordinarily be expected that an expert must be qualified under Evid.R. 702. The
situation presented in this case fits into this classification. Although these cases are
of a technical nature in that they allow lay opinion testimony on a subject outside
the realm of common knowledge, they still fall within the ambit of the rule’s
requirement that a lay witness’s opinion be rationally based on firsthand
observations and helpful in determining a fact in issue. These cases are not based




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                                      January Term, 2001




on specialized knowledge within the scope of Evid.R. 702,2 but rather are based
upon a layperson’s personal knowledge and experience.
         {¶ 14} We follow this line of cases and hold that the experience and
knowledge of 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. This meets the requirements of Evid.R. 701. It is
testimony rationally based on a person’s perceptions and helpful to a clear
understanding of a fact in issue.
         {¶ 15} Applying our holding to the facts of this case, we find that the
evidence was insufficient to show that the girls were qualified to testify as lay
witnesses. Their testimony was sketchy and conclusory. Melissa testified that she
“assumed it was” marijuana without explaining in detail how she arrived at this
conclusion. There was no evidence as to how many prior experiences the girls had



2. Evid.R. 702 provides:
          “A witness may testify as an expert if all of the following apply:
          “(A) The witness’ testimony either relates to matters beyond the knowledge or experience
possessed by lay persons or dispels a misconception common among lay persons;
          “(B) The witness is qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony;
          “(C) The witness’ testimony is based on reliable scientific, technical, or other specialized
information. To the extent that the testimony reports the result of a procedure, test, or experiment,
the testimony is reliable only if all of the following apply:
          “(1) The theory upon which the procedure, test, or experiment is based is objectively
verifiable or is validly derived from widely accepted knowledge, facts, or principles;
          “(2) The design of the procedure, test, or experiment reliably implements the theory;
          “(3) The particular procedure, test, or experiment was conducted in a way that will yield
an accurate result.”
          In contrast to Evid.R. 701, Evid.R. 702 authorizes expert testimony. Weissenberger, Ohio
Evidence 2001 Courtroom Manual (2000) 281. It establishes standards to be applied in determining
whether expert testimony should be admitted, and it provides criteria for determining whether a
witness should be accorded expert status by the trial court. Id. “[T]he Rule also sets forth the
general standard that expert testimony must be reliable, and then narrows this broad standard by
applying specific criteria to be used in ascertaining the reliability of expert testimony concerning
the results of tests, studies and scientific procedures.” Id. The distinction between lay and expert
witness opinion testimony is that lay testimony “results from a process of reasoning familiar in
everyday life,” while expert testimony “results from a process of reasoning which can be mastered
only by specialists in the field.” State v. Brown (Tenn.1992), 

.




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                                SUPREME COURT OF OHIO




had with the drug. While the girls testified that the marijuana was in a “joint” form,
neither girl testified as to the actual appearance of the drug itself. Moreover, while
Melissa testified in general terms as to the effects of marijuana, she did not
explicitly say whether she experienced those effects this time. We conclude that
there was an insufficient foundation of experience or knowledge to support their
opinions. Without a proper foundation, this evidence should have been excluded.
The trial court abused its discretion in permitting this lay opinion testimony. Once
the evidence is excluded, there is no remaining evidence of this element of the
crime. When evidence of an element of the crime is deemed insufficient on appeal,
the conviction must be reversed. Plain error requires us to affirm the court of
appeals’ judgment reversing appellant’s convictions.
                                                                   Judgment affirmed.
          MOYER, C.J., DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
          COOK, J., dissents.
                                  __________________
          COOK, J., dissenting.
          {¶ 16} I am in substantial agreement with the rule that the majority
announces today. Under Evid.R. 701, a properly qualified lay witness may render
an opinion on the identity of a controlled substance. And properly admitted lay
opinion testimony may provide sufficient evidence of a substance’s identity to
support a conviction for corrupting another with drugs. Despite my agreement with
these principles, however, I am unable to concur in the ultimate decision to reverse
McKee’s conviction on the ground that the trial court committed plain error in
allowing lay opinion testimony lacking the requisite foundation. I would find no
plain error in this case and take this opportunity to clarify the contours of the plain-error doctrine.




                                           8
                                      January Term, 2001




         {¶ 17} Ordinarily, the failure to lodge a timely objection to the admission
of testimony results in the forfeiture of any claimed error. See, e.g., State v. Allen
(1995), 

, 

.3 Crim.R. 52(B) tempers the
harsh consequences of failing to object by stating, “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.” The rule is identical to Fed.R.Crim.P. 52(b), which the United States
Supreme Court has described as a “ ‘careful balancing of our need to encourage all
trial participants to seek a fair and accurate trial the first time around against our
insistence that obvious injustice be promptly redressed.’ ” United States v. Young
(1985), 

, 

, 

, quoting United
States v. Frady (1982), 

, 

, 

. This court has repeatedly stated that plain error under Crim.R. 52(B) will not
exist unless we can conclude that but for the error, the outcome of the trial would
clearly have been otherwise. See, e.g., State v. Lindsey (2000), 

, 

; State v. Moreland (1990), 

, 

; State v. Long (1978), 

, 

, 

, paragraph two of the syllabus. Accordingly, appellate courts should not take
notice of an error, no matter how clear, if the error had no bearing on the outcome
of the trial.




3. We have often referred to the failure to object as a waiver of any error. A failure to object,
however, is more accurately characterized as a forfeiture. See United States v. Olano (1993), 

, 

, 

. “Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a
known right.’ ” 

 quoting Johnson v. Zerbst (1938), 

, 

, 

. While waiver and forfeiture are not the same, courts “have so often used them
interchangeably that it may be too late to introduce precision.” Freytag v. Commr. of Internal
Revenue (1991), 

, 

, 

 (Scalia, J.,
concurring). Nevertheless, the distinction retains some significance in the context of Crim.R. 52(B).
A right that is waived in the true sense of that term cannot form the basis of any claimed error under
Crim.R. 52(B). Olano, 

, 

, 

. On the other hand,
mere forfeiture does not extinguish a claim of plain error under Crim.R. 52(B). 

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                              SUPREME COURT OF OHIO




        {¶ 18} Today, the majority finds an outcome-determinative error in the
admission of lay opinion testimony and decides that the plain-error doctrine
“requires us to” uphold the court of appeals’ reversal of McKee’s conviction. But
the outcome-determinative nature of an error is not the only factor to consider in
deciding whether to notice the error under Crim.R. 52(B). To the contrary, the
prejudicial nature of the forfeited error is only one element to be satisfied before
the appellate court may correct the error.
        {¶ 19} In United States v. Olano (1993), 

, 

, 

, the United States Supreme Court clarified the standard for plain-error
review under Fed.R.Crim.P. 52(b). The court explained that three limitations
circumscribe an appellate court’s decision whether to correct an error absent a
timely objection by the defendant at trial. First and most fundamentally, there must
be error, i.e., a deviation from a legal rule. 

, 

, 

. Second, the error must be plain. To be plain, the error must be “
‘clear’ or, equivalently, ‘obvious.’ ” 

, 

, 

, citing Young, 

, 

, 

. Third,
the error must affect substantial rights. In most cases, this means that the error must
have affected the outcome of the trial. Olano, 

, 

-
1778, 

.
        {¶ 20} Even if a forfeited error satisfies these three prongs, however, an
appellate court need not correct it.         By its very terms, Crim.R. 52(B) is
discretionary; a reviewing court “may” notice plain errors but is not obliged to do
so. 

, 

, 

. We have recognized this
discretionary aspect of the rule by instructing courts to take notice of plain error
“with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Long at paragraph three of the syllabus; see, also,
Young, 

, 

, 

. Olano further explained
that an appellate court should exercise its discretion to correct plain errors affecting




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                                January Term, 2001




substantial rights “if the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’ ” Olano, 

, 

,

, quoting United States v. Atkinson (1936), 

,

, 

. At a minimum, appellate courts “should no
doubt correct a plain forfeited error that causes the conviction or sentencing of an
actually innocent defendant.” 

 But plain-error correction under Crim.R. 52(B)
is not limited to cases of actual innocence. 

       {¶ 21} I would adopt the Olano method of analyzing when to correct plain
error under Crim.R. 52(B). Olano’s framework is true to the text of the rule, which
by its very terms circumscribes the authority of an appellate court to correct plain
error. Olano, 

, 

, 

. In contrast,
an analytic framework requiring reviewing courts to correct an outcome-determinative forfeited error ignores two vital limitations embodied in Crim.R.
52(B)’s text: the type of error (“plain”) that can be corrected and the court’s
discretion (plain errors “may be noticed”) in deciding whether to correct it.
       {¶ 22} Utilizing the Olano framework, I would conclude that reversal is not
warranted in this case. Under the rule announced by the majority today, the
admission of lay opinion testimony concerning the identity of a controlled
substance is erroneous unless the proponent of the testimony establishes a proper
foundation for it. This rule arguably establishes the first prong of the Olano plain-error analysis, i.e., an error having been committed. This case fails to satisfy
Olano’s second prong, however, because the error recognized by the majority is
not plain. To be plain, an error must be obvious in light of the law at the time of
appeal. See Johnson v. United States (1997), 

, 

, 

; accord State v. Marple (1996), 

, 

 (applying Olano). But the rule announced today was not
clear at the time of appeal; to the contrary, there was a conflict in the districts
(concerning the admissibility of lay opinion testimony identifying a controlled




                                          11
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substance) that was unresolved until this court’s decision today. And the court of
appeals cited no controlling decision from its own district establishing that the
admission of the girls’ testimony was error. Several federal appellate courts
applying the Olano analysis have held that an error cannot be deemed plain if there
is no controlling case law on point and the authority in other circuits is split. See,
e.g., United States v. Aguillard (C.A.11, 2000), 

; United States
v. Thompson (C.A.9, 1996), 

; United States v. Alli-Balogun (C.A.2,
1995), 

; United States v. Williams (C.A.6, 1995), 

.
Simply put, if the law is unclear on a particular issue at the time of trial and remains
that way at the time of appeal, the error cannot be plain and should not be noticed
under Crim.R. 52(B). See United States v. David (C.A.4, 1996), 

, 642-
643. As the David court explained:
         “If the contemporaneous objection requirement is to have any real force,
presumably an objection would be required … in the circumstance where the law
at the time of trial is unclear as to whether the [trial] court’s proposed course would
constitute error. A timely objection in such a circumstance would provide the court
an opportunity to consider the question, possibly avoid the commission of an error,
and thereby prevent the need for retrial upon appellate reversal—the very purposes
of the contemporaneous objection rule.” (Footnote omitted.) 

.
         {¶ 23} In this case, it was not clear either at the time of trial or by the time
of the direct appeal that the girls’ testimony identifying marijuana was
inadmissible.4 I therefore cannot join in the majority’s determination that the trial


4. The David court distinguished the situation where the law was clear at the time of trial (and
contrary to the defendant’s position on appeal), but changed by the time of appeal by a supervening
decision. In that instance, the David court held that an error would be deemed plain “where an
objection at trial would have been indefensible because of existing law, but a supervening decision
prior to appeal reverses that well-settled law, rendering the defendant’s claim clearly meritorious.”

. The United States Supreme Court adopted this view in Johnson, holding that “in a
case … where the law at the time of trial was settled and clearly contrary to the law at the time of
appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v.




                                                  12
                                    January Term, 2001




court committed plain error by failing to follow a rule that was not definitively
announced until today.
        {¶ 24} I would adopt the Olano framework for analyzing plain error under
Crim.R. 52(B) and find that any error committed by the trial court in this case was
not plain.
                                  __________________
        Jim Slagle, Marion County Prosecuting Attorney, for appellant.
        Daniel E. Shifflet & Co., L.P.A., and Kevin P. Collins, for appellee.
                                  __________________




United States, 

, 

, 

. This case presents no
such situation.




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