State v. Scott

[Cite as State v. Scott, 

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,
                                                           CASE NO. 13-24-10
         PLAINTIFF-APPELLEE,

    v.

THOMAS E. SCOTT,                                           OPINION

         DEFENDANT-APPELLANT.



                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 23 CR 0144

                                       Judgment Affirmed

                            Date of Decision: February 10, 2025



APPEARANCES:

         Joseph C. Patituce for Appellant

         Angela M. Boes for Appellee
Case No. 13-24-10




WILLAMOWSKI, J.

       {¶1} Defendant-appellant Thomas E. Scott (“Scott”) appeals the judgment of

the Seneca County Court of Common Pleas, arguing that the trial court erred by

permitting hearsay testimony; improper witness vouching; impermissible lay

witness testimony; and inadmissible prior bad acts evidence at trial. For the reasons

set forth below, the judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On December 3, 2022, Scott was driving in the outer westbound lane of

West Market Street in Tiffin, Ohio. At the same time, Jacob Coots (“Coots”) was

driving a car in the inner westbound lane. As they approached an intersection with

Teakwood Drive, Coots and Scott proceeded down the roadway alongside each

other. Charlotte Phillips (“Phillips”) had been driving eastbound on West Market

Street and sought to make a left turn onto Teakwood Drive. When Phillips pulled

into the intersection, Scott collided with her vehicle. Coots then drove away from

the scene.

       {¶3} Several police officers were sent to this intersection after dispatch had

received reports that two vehicles had been “racing” in the lead up to an accident.

(Tr. 211). After arriving at the intersection, Officer Drew Westenbarger (“Officer

Westenbarger”) made contact with Scott. At the time of the collision, Scott’s


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girlfriend, Megan Brunty (“Brunty”), and her two-year-old daughter were

passengers in his vehicle.

       {¶4} The police also obtained statements at the scene of the accident from

eyewitnesses Chet Matthews (“Matthews”) and Gary Tyree (“Tyree”). Since he

was not able to make contact with Phillips before she was transported to the hospital,

Officer Westenbarger spoke with her at the emergency room. At this time, Phillips

was “coming in and out of consciousness.” (Tr. 223). After this conversation,

Phillips was “cit[ed] for failure to yield while turning left.” (Tr. 224). Several hours

later, Phillips passed away as the result of the injuries she sustained in the accident.

       {¶5} In the subsequent investigation, the police were able to obtain video

footage of the accident from the security cameras of two local businesses. Based

on these recordings, an accident reconstructionist with the Ohio State Highway

Patrol, Trooper Ryan D. Thomas (“Trooper Thomas”), concluded that Scott was

driving at fifty-three miles per hour as he drove alongside Coots and approached the

intersection. The posted speed limit on West Market Street was thirty-five miles

per hour.

       {¶6} On July 27, 2023, Scott was indicted on one count of aggravated

vehicular homicide in violation of R.C. 2903.06(A)(2)(a), a third-degree felony, and

one count of endangering children in violation of R.C. 2919.22(A), a first-degree

misdemeanor. The trial on these charges began on February 5, 2024. Brunty,


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Matthews, Officer Westenbarger, and Trooper Ryan testified as witnesses. The jury

found Scott guilty of endangering children but acquitted him of aggravated

vehicular manslaughter. The trial court issued its judgment entry of sentencing on

February 27, 2024.

      {¶7} Scott filed his notice of appeal on March 20, 2024. On appeal, he raises

the following six assignments of error:

                           First Assignment of Error

      The trial court erred by allowing, over objection, witnesses to
      repeatedly testify to out of court statements being offered for their
      truth in violation of the Confrontation Clause as laid out in Bruton
      v. U.S. and the Supreme Court’s holding in State v. Ricks, 2013-
      Ohio-3712.

                          Second Assignment of Error

      The trial court erred by allowing, over objection, the State to
      intentionally introduce multiple instances of witnesses vouching
      for the testimony of other witnesses.

                           Third Assignment of Error

      The trial court erred by allowing, over objection, a police officer
      to testify to appellant’s perceived speed based on watching a video
      when that officer had no training or experience to allow such a
      conclusion.

                          Fourth Assignment of Error

      The trial court erred by allowing, over objection, lay witnesses to
      both guess the speed of appellant’s vehicle.




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                                   Fifth Assignment of Error

         The trial court erred when it allowed a witness to define the legal
         definition and terms of the crime of ‘drag racing’ over the
         objection of counsel.

                                   Sixth Assignment of Error

         The trial court erred when it allowed witnesses to repeatedly
         introduce prior bad acts over the objection of counsel when no
         notice of Evid.R. 404(B) had ever been filed and allowed officers
         to comment that defendant did not give a written statement.

                                     First Assignment of Error

         {¶8} Scott argues that the trial court erred by permitting testimony about

statements made by his co-defendant and several eyewitnesses in violation of the

protections provided by the Confrontation Clause of the U.S. Constitution.1

                                            Legal Standard

         {¶9} “The Confrontation Clause guarantees the right of defendants in

criminal cases ‘to be confronted with the witnesses against him.’” State v. Little,

 (3d Dist.), quoting U.S. Const., Amend. VI.

         The United States Supreme Court has interpreted this to mean that
         admission of an out-of-court statement of a witness who does not
         appear at trial is prohibited by the Confrontation Clause if the
         statement is testimonial unless the witness is unavailable and the
         defendant has had a prior opportunity to cross-examine the witness.



1
 Scott also argues that Officer Westenbarger was prompted to give improper opinions about the credibility
of eyewitness accounts of the accidents. We will address these arguments under the second assignment of
error where Scott more directly addresses this issue. We also note that he does not challenge the identified
out-of-court statements as inadmissible hearsay. For this reason, we will limit our analysis accordingly.

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(Emphasis added.) State v. Maxwell, 

, citing Crawford v.

Washington, 

 (2004).

      {¶10} However, “when the declarant appears for cross-examination at trial,

the Confrontation Clause places no constraints at all on the use of his prior

testimonial statements.” State v. Gutierrez, 

 (3d Dist.),

quoting 

. Thus, the Confrontation Clause “does not bar

admission of a statement so long as the declarant is present at trial to defend or

explain it.” State v. Kyles, 

 (12th Dist.), quoting 

. See also State v. Perez, 

.

      {¶11} On appeal, rulings on the admissibility of statements under the

Confrontation Clause are reviewed de novo. State v. Cervantes, 

 (3d Dist.). “‘De novo review is independent’ and is conducted ‘without

deference to the lower court’s decision.’” State v. Ferguson, 

(3d Dist.), quoting State v. Hudson, 

 (3d Dist.). However,

      in cases where the defendant has established a violation of rights
      under the Confrontation Clause, the Supreme Court of Ohio has
      consistently applied a harmless-error analysis to determine whether
      the issue prejudiced the defendant.

State v. Stevens, 

 (4th Dist.), citing State v. McKelton, 2016-

Ohio-5735, ¶ 192. Delaware v. Van Arsdall, 

 (1986).

      Whether a Sixth Amendment error was harmless beyond a reasonable
      doubt is not simply an inquiry into the sufficiency of the remaining
      evidence. Instead, the question is whether there is a reasonable

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Case No. 13-24-10


       possibility that the evidence complained of might have contributed to
       the conviction.

State v. Bush, 

 (3d Dist.), citing Chapman v. California, 

 (1967). See McKelton at ¶ 190; Carter at ¶ 47.

       {¶12} A “‘reasonable possibility’ does not exist, and the error is harmless,

where there is ‘overwhelming evidence of the accused’s guilt or some other indicia

that the error did not contribute to the conviction.’” State v. Goff, 

 (9th Dist.), quoting State v. DeMarco, 

 (1987).

       Overwhelming proof becomes readily apparent when ‘the allegedly
       inadmissible statements … at most tend[ ] to corroborate certain
       details’ of the state's case-in-chief. … Accordingly, the admission
       of purely cumulative evidence in violation of the Sixth Amendment
       amounts to harmless error.

(Brackets sic.) State v. Carter, 

, quoting Schneble v. Florida,

 (1972).

                                  Legal Analysis

       {¶13} Scott asserts that his rights under the Confrontation Clause were

violated when Officer Westenbarger testified about several witness statements that

were given to the police by Matthews, Tyree, and Coots. However, Matthews was

called by the State to testify as a witness at trial and was ably cross-examined by

defense counsel. For this reason, any out-of-court statements from Matthews that

may have been introduced during Officer Westenbarger’s testimony are not subject

to the Confrontation Clause. See State v. Bender, 

 (3d Dist.);

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State v. Thomas, 

 (9th Dist.); Kyles, 

. See also McKelton at fn. 4.

       {¶14} We turn now to the challenged statements from Tyree and Coots. At

trial, Officer Westenbarger testified that Tyree witnessed the accident “and advised

that he didn’t think … nobody was racing or speeding.” (Tr. 257). However,

Tyree’s statement contradicts the State’s theory of this case and was favorable to

Scott. For this reason, we conclude that this testimony did not reasonably contribute

to Scott’s conviction. Thus, even if admission of this statement was inconsistent

with the requirements of the Confrontation Clause, any error was harmless beyond

a reasonable doubt.

       {¶15} Next, the State asked Officer Westenbarger what he came to “learn”

during the police interview with Scott’s co-defendant, Coots. (Tr. 275). Officer

Westenbarger responded as follows:

       Mr. Coots advised that he believed he was doing about between 35 to
       38 miles an hour. He stated that he wasn’t purposely racing anybody.
       He did notice that with Mr. Scott’s revving the engine that he could
       have been trying to race him, but again denied taking part in it.

(Tr. 275). As an initial matter, we note that a sidebar was held immediately after

this testimony was elicited. The trial court then gave the following instruction to

the jury:

       Ladies and gentlemen, we’re back on the record. The testimony–the
       question and answer should be disregarded, stricken involving the last
       couple questions of [the prosecutor]. So you should disregard

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       anything that was dealing with that other person [Coots], okay. You
       must disregard it, okay.

(Tr. 276). “A jury is presumed to follow the curative instruction given by the trial

court to disregard any evidence to which an objection is sustained.” State v. Smith,

 (3d Dist.), quoting State v. Dodson, 

 (3d

Dist.). See also U.S. v. Chavez, 

 (2007); U.S. v. Owens, 

 (1992) (relying in part on a curative instruction to find that an alleged

Confrontation Clause violation was harmless).

       {¶16} For several reasons, we find that any error was cured by the trial

court’s instruction. First, Coots denied drag racing and speeding in the challenged

statement. Thus, this testimony was generally favorable to Scott. Second, the

statement in which Coots described a noise that sounded like Scott was revving his

engine was cumulative to other evidence. At trial, Brunty testified that she was in

the vehicle with Scott and that she heard him revving the engine. Further, two of

the eyewitnesses who testified at trial—Chester Matthews and Troy Russell—

described the revving noises that they heard coming from Scott’s vehicle before he

sped down the roadway. Third, Officer Westenbarger testified that Scott explained

that he had been having engine trouble and Scott stated that this might explain why

the eyewitnesses thought he was trying to drag race. Thus, the jurors heard Scott’s

alternative explanation for the noises that Coots described.



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Case No. 13-24-10


       {¶17} Having examined the contents of the record, we find no reason to

dispense with the presumption that the jurors followed the trial court’s curative

instruction. We conclude that, even if the challenged statement was given in

violation of the Confrontation Clause, any resulting error was harmless beyond a

reasonable doubt. Accordingly, the first assignment of error is overruled.

                             Second Assignment of Error

       {¶18} Scott argues that the trial court erred by allowing witnesses to vouch

for the credibility of other witnesses.

                                 Standard of Review

       {¶19} The decision to admit or exclude evidence is committed to the sound

discretion of the trial court. Little, 

. For this reason, an

appellate court reviews a trial court’s determination on the admission of evidence

under an abuse of discretion standard. State v. Sullivan, 

 (3d

Dist.). Thus, an appellate court is not to substitute its judgment for that of the trial

court but will reverse the trial court’s decision if it is unreasonable, arbitrary, or

capricious. State v. Howton, 

 (3d Dist.).

                                   Legal Standard

       {¶20} “In our system of justice it is the fact finder, not the so-called expert

or lay witnesses, who bears the burden of assessing the credibility and veracity of

witnesses.” State v. Eastham, 

 (1988). Thus, a witness


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Case No. 13-24-10


“infringe[s] upon the role of the finder of fact” by providing an opinion as to the

credibility or veracity of another witness. State v. Bruce, 

 (3d

Dist.), quoting State v. Smith, 

 (10th Dist.). “No improper

vouching occurs so long as the prosecutor or the witness does not express any

personal belief about another witness’ credibility.” State v. Paige, 

 (7th Dist.). Further, “[a]n officer is not vouching for witness credibility,

however, by explaining the investigative procedure he followed.” State v. Sutton,

 (8th Dist.).

                                    Legal Analysis

       {¶21} Scott argues that Officer Westenbarger improperly vouched for the

credibility of witnesses when he testified about whether the eyewitness accounts

from Tyree, Matthews, and Brunty were “corroborated” by the security camera

footage of the accident. (Tr. 256). As an initial matter, we note that Officer

Westenbarger never offered an opinion as to whether any of these witnesses were

truthful or credible. See State v. Schmelmer, 

 (5th Dist.).

       {¶22} Further, this challenged testimony came as Officer Westenbarger was

detailing the investigatory steps that he took after arriving at the scene of the

accident. See State v. Monroe, 

 (8th Dist.). He indicated that

the “first course of action” he took was “[t]o try to obtain witnesses.” (Tr. 216). He

then explained the following:


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       There was a lot going on. There were a lot of people standing around.
       Took a little bit to decipher who saw what or if anybody saw anything.
       Originally we had several witnesses that stated they saw it, but after
       speaking with them, they just happened to see after—like after the
       fact, after it was all said and done.

(Tr. 216). The police were subsequently able to obtain security camera footage of

the accident and relied on this evidence in examining the accounts that had been

provided by eyewitnesses at the scene. (Tr. 216).

       {¶23} Officer Westenbarger’s testimony indicates that a number of these

accounts were not corroborated by the video footage because these witnesses “didn’t

have any information as to seeing what happened prior to the crash …[.]” (Tr.

256). Another witness’s account could not be “corroborated” because the security

camera footage showed that he “wasn’t close enough to the defendant’s vehicle” to

observe what had transpired.      (Tr. 256-257).    For these reasons, the police

investigation did not proceed along the lines of these witness statements.

       {¶24} Officer Westenbarger testified that Matthews did not have time to

provide a statement at the scene of the accident.         For this reason, Officer

Westenbarger explained that he had to contact Matthews to obtain a witness

statement. Similarly, the police interviewed Brunty to obtain her description of

what she observed as a passenger in Scott’s vehicle. The police investigation moved

forward with these accounts as Officer Westenbarger testified that Matthews and




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Brunty’s statements were “corroborated” by the video footage and what the police

“had learned already from other witnesses.” (Tr. 256, 261).

       {¶25} Again, we emphasize that Officer Westenbarger never stated that any

of these accounts was true or false. He also did not make any statements regarding

whether he believed any of these witnesses were truthful or credible.              See

Schmelmer, 

. To the contrary, “say[ing] that one statement

corroborated another is not to say that either was true but rather that one agreed with

the other, that they were consistent.” State v Smith, 

 (8th

Dist.); State v. Black, 

, ¶ 31-32 (8th Dist.) (making a “factual

statement” about the consistency of evidence does not convey an opinion about the

truthfulness of a witness).

       {¶26} Further, during this entire line of inquiry, Officer Westenbarger was

also explaining the “general investigatory process as []he gathered information

about the incident.” State v. Hughes, 

 (10th Dist.). In this case,

the police obtained numerous witness statements. For this reason, this investigation

required the police to sift through these accounts for their consistency. The basis of

this analysis was the video footage that was shown to the jurors. See State v. Moses,

 (7th Dist.) (holding that the prosecution cannot imply that a

“witness’s testimony is corroborated by evidence known by the government but not

known by the jury”).


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       {¶27} Having examined the challenged testimony, we conclude that Officer

Westenbarger’s explanation of this process did not encompass any impermissible

witness vouching in this case. Sutton, 

. For these reasons,

the second assignment of error is overruled.

                      Third and Fourth Assignments of Error

       {¶28} We will consider the third and fourth assignments of error together

because Scott argues in both that the trial court erred by permitting several lay

witnesses to testify about how fast he was driving down the roadway.

                                   Legal Standard

       {¶29} Different rules govern the admissibility of opinion testimony from

expert witnesses and lay witnesses. See Evid.R. 701, 702. Evid.R. 701 governs the

admissibility of opinion testimony from lay witnesses and reads as follows:

       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 (1) rationally based on the perception of the
       witness and (2) helpful to a clear understanding of the witness’
       testimony or the determination of a fact in issue.

“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. McKee, 

 (2001), quoting

State v. Brown, 

 (Tenn. 1992).


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Case No. 13-24-10


       {¶30} “The line between expert testimony under Evid.R. 702 and lay opinion

testimony under Evid.R. 701 is not always easy to draw.” State v. Salyers, 2020-

Ohio-147, ¶ 30 (3d Dist.), quoting State v. Ndao, 

 (2d Dist.).

The Ohio Supreme Court has recognized 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.” 

.

       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 on specialized knowledge within the scope of Evid.R.
       702, but rather are based upon a layperson’s personal knowledge and
       experience.

. Additionally, “police officers may offer lay opinion testimony under

Evid.R. 701 if it is based on the officers’ perceptions through experience.” State v.

Lavender, 

 (1st Dist.).

       {¶31} Further, “the erroneous admission of lay opinion testimony ‘does not

give rise to grounds for reversal where the opinion testimony was not [unfairly]

prejudicial to the defendant or where the opinion testimony did not [unfairly] bias

the jury against the defendant.’” State v. Keith, 

 (3d Dist.),

quoting State v. Qualls, 

, *4 (3d Dist. Oct. 22, 2001).




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Case No. 13-24-10


                                   Legal Analysis

       {¶32} Scott raises several arguments herein. First, he argues that the four

eyewitnesses to the collision who testified at trial should not have been permitted to

give opinions about the rate of speed that Scott appeared to be driving as he

approached the intersection. However, as a general matter, “lay witnesses may give

their opinions on matters they have actually observed ‘such as the speed that an

automobile was traveling ….’” State v. Urbina, 

 (10th

Dist.), quoting Urbana ex rel. Newlin v. Downing, 

 (1989).

       {¶33} Scott further argues that the trial court should not have permitted lay

witnesses to give specific estimates of how fast he was driving before the accident.

See Johnson v. Greater Cleveland Regional Authority, 

 (8th Dist.); City of Fairfield v. Casey, 

, *2 (12th Dist. Oct. 4,

1999); State v. Turco, 

, fn. 1 (12th Dist. July 19, 1999). However,

the State called an expert witness in the field of accident reconstruction, Trooper

Thomas, to testify. Based on an analysis of the security camera footage of the

accident, Trooper Thomas was able to determine that Scott had been driving at a

speed of roughly fifty-three miles per hour just before impact.

       {¶34} The eyewitnesses who testified at trial stated that Scott was driving

somewhere between fifty and sixty miles per hour down the roadway. We conclude

that, even if the trial court erred by permitting this testimony, any such error was


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Case No. 13-24-10


harmless because the estimates offered by these lay witnesses, based on their

personal observations and experience as licensed drivers, were in line with the

calculation offered by the expert witness. Thus, we conclude that this first argument

is without merit.

       {¶35} Second, Scott points out that Officer Westenbarger testified that the

flow of traffic appeared to be going around the posted speed limit of thirty-five miles

per hour in the security camera footage and that he (Scott) appeared to be going

faster than the flow of traffic. Scott argues that Officer Westenbarger should not

have been permitted to offer this opinion based on his observations of the security

camera footage since he was not an expert witness.

       {¶36} However, Trooper Thomas was qualified as an expert witness. He

testified that he “check[ed] a couple of vehicles” and found that these cars were

traveling “33 to 38 miles an hour, 40.” (Tr. 355). Thus, even if the trial court erred

in permitting the challenged testimony from Officer Westenbarger, we conclude that

any such error was harmless because his estimate was in line with the expert opinion

offered by Trooper Thomas. Further, the jury was also able to view the security

camera footage of the accident at trial and could independently conclude whether

Scott was traveling faster than the flow of the surrounding traffic. Thus, we

conclude that this second argument is without merit.




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       {¶37} Third, Scott argues that Officer Westenbarger should not have been

permitted to answer several questions about what impressions he was left with after

reviewing the security camera footage during the investigation. On appeal, Scott

initially argues that this testimony was improper because Officer Westenbarger did

not personally observe the accident. However, police officers are permitted to

testify based upon their experience and knowledge. State v. Moss, 

 (6th Dist.) (holding that a police officer could interpret events that were

depicted in video footage based upon his experience).

       {¶38} Scott also argues that Officer Westenbarger was not qualified to testify

about this matter based upon his experience. However, even if this assertion were

true, the jury was still able to view the security camera footage and could reach an

independent conclusion as to what transpired. We also note that, even though

Officer Westenbarger did not personally witness the collision, defense counsel

asked him a number of questions about the conclusions he drew from his

investigation and about his impressions of the security camera footage.

       {¶39} In response to one line of questioning, Officer Westenbarger testified

that he determined from his investigation that Phillips had failed to yield while

turning left and that he, as a result, gave her a traffic citation at the hospital. In

another line of questioning, defense counsel played the security camera footage and

then asked a series of questions. Based on this footage, Officer Westenbarger


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Case No. 13-24-10


testified that Scott appeared to have the right-of-way and that the accident would

not have happened if Phillips had not turned into the intersection.

       {¶40} These lines of questioning assumed that Officer Westenbarger had the

ability to offer valid opinions about what the security camera footage depicted based

upon his experience. Having examined Officer Westenbarger’s testimony in its

context at trial, we conclude that this second argument is without merit.

Accordingly, the third and fourth assignments of error are overruled.


                             Fifth Assignment of Error

       {¶41} Scott argues that the trial court erred by allowing the prosecutor to

elicit the elements of the offense of street racing during Officer Westenbarger’s

testimony.

                                  Legal Standard

       {¶42} “The prosecuting attorney does not instruct the jury on the law, the

trial judge does.” State v. Shine-Johnson, 

 (10th Dist.),

quoting State v. Palmer, 

, *12 (7th Dist. Aug. 29, 1996). Further,

“a prosecuting attorney should not mislead the jury by either misstating the law or

the facts.” Shine-

, citing State v. Crossty, 

, ¶ 45

(12th Dist.).




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Case No. 13-24-10


                                     Legal Analysis

       {¶43} At trial, the prosecutor asked Officer Westenbarger several questions

about the offense of street racing. Scott challenges the following portion of this

exchange on appeal:

       [Prosecutor]: And what does that code section set forth as the
       definition of drag racing?

       …

       [Officer Westenbarger]: More or less two vehicles operating side by
       side in a–in a quick manner more or less towards a goal or a race.

       [Prosecutor]: Accelerating speeds–

       [Officer Westenbarger]: Accelerating speeds—

       [Prosecutor]: –would you agree?

       [Officer Westenbarger]: Yes.

       [Prosecutor]: In a competitive attempt to out distance each other–

       [Officer Westenbarger]: Yes, ma’am.

(Tr. 278). On appeal, Scott raises two main arguments to challenge this testimony.

       {¶44} First, Scott argues that the identified exchange provided an incorrect

definition of the offense of street racing. R.C. 4511.251 defines “street racing” and

reads, in its relevant part, as follows:

       ‘[S]treet racing’ means the operation of two or more vehicles from a
       point side by side at accelerating speeds in a competitive attempt to
       out-distance each other or the operation of one or more vehicles over
       a common selected course, from the same point to the same point,

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Case No. 13-24-10


       wherein timing is made of the participating vehicles involving
       competitive accelerations or speeds.

(Emphasis added.) Scott points out that the Officer Westenbarger did not mention

the italicized portion of R.C. 4511.215 and argues that this omission rendered the

definition of street racing presented at trial incorrect.

       {¶45} However, R.C. 4511.251 provides two separate definitions of “street

racing.” State v. Goodman, 

 (7th Dist. 1966). First, street

racing is defined as “(1). Two or more vehicles. (2). Operating from a point side

by side. (3). At accelerating speeds.” 

 Second, street racing is defined as “(1).

One or more vehicles. (2). Operating over a common selected course, from the

same point to the same point. (3). Wherein timing is made of the participating

vehicles. (4). Involving competitive accelerations or speeds.” 

 See also In re

Wood, 

 (10th Dist.).

       {¶46} In R.C. 4511.251, the two definitions of street racing are joined by the

conjunction “or.”     Thus, conduct that meets either of these two definitions

constitutes “street racing” within the meaning of this statute. For this reason, the

omission of one of these independent definitions does not render a description of

“street racing” incorrect. Since Officer Westenbarger’s testimony included all of

the component parts of the relevant definition, Scott has failed to establish the State

elicited an incorrect definition of “street racing” at trial. Thus, we conclude that this

first argument is without merit.

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Case No. 13-24-10


       {¶47} Second, he argues that the prosecutor should not have been permitted

to elicit a legal definition from Officer Westenbarger as this was the province of the

trial court. As a general matter, the trial court should shoulder the responsibility of

instructing the jurors as to the law. State v. Wilson, 

 (12th

Dist.). Scott argues that this testimony was prejudicial because the State elicited an

incorrect definition of street racing. However, we have already concluded that the

definition of this offense that was provided during Officer Westenbarger’s

testimony was not incorrect.

       {¶48} Further, as street racing is a familiar concept, the jury could have, in

the absence of any testimony that formally defined the offense, concluded that Scott

and Coots were racing towards the intersection after reviewing the security camera

footage of the collision. Even if the trial court erred in permitting this testimony,

we conclude that such error was harmless. See State v. Hodgson, 

 (11th Dist.). Thus, we conclude that this second argument is without merit.

Accordingly, the fifth assignment of error is overruled.

                               Sixth Assignment of Error

       {¶49} Scott challenges testimony from Officer Westenbarger that relayed

several statements that he (Scott) made during his police interview. He primarily

argues that these challenged statements improperly introduced evidence of prior bad

acts in violation of Evid.R. 404(b).


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Case No. 13-24-10


                                    Legal Standard

          {¶50} Under Evid.R. 801(D)(2)(a), ‘a defendant’s statement offered against

him is not hearsay.”        State v. Parker, 

 (7th Dist.).

“Admissions of party-opponents, although not hearsay, are still subject to the

general rules of admissibility ….” State v. Kryling, 

 (6th

Dist.).

          {¶51} “Evid.R. 404(B) categorically prohibits evidence of a defendant’s

other acts when its only value is to show that the defendant has the character or

propensity to commit a crime.” State v. Smith, 

. “However,

evidence of a defendant’s other acts may be admissible for other permissible

purposes such as ‘proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.’” State v. Wears,

 (3d Dist.), quoting Evid.R. 404(B)(2). Importantly, “[n]ot all

evidence regarding a defendant’s behavior constitutes ‘other acts’ evidence.” State

v. Lotzer, 

 (3d Dist.). “The definition of the word ‘act’

includes ‘the process of doing something; action’ and ‘[s]omething that is done or

performed; deed.’” 

 quoting State v. Patton, 

 (3d Dist.

1991).

          {¶52} When testimony about other acts is at issue, a three-step analysis

governs the admissibility of such evidence under Evid.R. 404(B).”           State v.


                                         -23-
Case No. 13-24-

-Ohio-256, ¶ 16 (3d Dist.). “The first step is to consider whether the

other acts evidence is relevant to making any fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence.” State v. Williams, 

. This “inquiry is not whether

the other-acts evidence is relevant to the ultimate determination of guilt. Rather, the

court must evaluate whether the evidence is relevant to the particular purpose for

which it is offered.” State v. Hartman, 

.

       {¶53} The second step in this analysis involves determining whether the

other acts evidence “is presented to prove the character of the accused in order to

show activity in conformity therewith or whether the other acts evidence is

presented for a legitimate purpose, such as those stated in Evid.R. 404(B).”

Williams, 

. “The key is that the [other acts] evidence must

prove something other than the defendant’s disposition to commit certain acts.”

.

       {¶54} “The third step is to consider whether the probative value of the other

acts evidence is substantially outweighed by the danger of unfair prejudice.”

Williams, 

. “As the importance of the factual dispute for

which the evidence is offered to the resolution of the case increases, the probative

value of the evidence also increases and the risk of unfair prejudice decreases.”

Hartman, 

. On appeal, the first two steps of this analysis are


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Case No. 13-24-10


reviewed de novo while the third step is reviewed for an abuse of discretion. Bruce,

.

                                   Legal Analysis

       {¶55} Scott challenges a number of statements that Officer Westenbarger

made during his trial testimony. First, Officer Westenbarger’s testimony indicates

that, during the police interview, he pointed out to Scott that he had a decal across

his windshield that stated “speeding for the cure.” (Tr. 190, 266). However, this

testimony does not provide any evidence of a prior bad act on the part of Scott. State

v. Patton, 

 (3d Dist. 1991) (An “act” is “[s]omething that

is done or performed”; thus, a defendants “oral statements and comments” generally

do not “constitute ‘other acts’ proscribed by Evid.R. 404(B).”). As a decal on his

vehicle, this was apparently a statement that Scott wanted to display publicly. For

this reason, this decal was also easily observable in the photographs of the accident

that were presented to the jury as exhibits. Thus, we conclude that this first

argument is without merit.

       {¶56} Second, Officer Westenbarger testified that Scott stated that “he

wasn’t going to bullsh*t” the police and admitted that “he had a lead foot.” (Tr.

264-265). Immediately after this comment, Officer Westenbarger testified that

Scott stated that he was going faster than thirty-five miles per hour down the

roadway. Prior to this challenged testimony, Officer Westenbarger stated that Scott


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Case No. 13-24-10


admitted that “he might have been going a little bit faster than the speed” limit but

unequivocally stated “that he wasn’t drag racing.” (Tr. 263). In this context, Scott’s

admission that “he had a lead foot” appears to be directed at explaining his behavior

in the lead up to the accident in this case. (Tr. 265). This statement does not

ultimately appear to be describing a prior bad act but his behavior in this case. Thus,

we conclude that this second argument is without merit.

       {¶57} Third, Officer Westenbarger indicated that he was able to identify

Scott at the scene of the accident after having seen him previously “around town

with prior incidents.” (Tr. 180). This “response did not implicate the appellant in

another crime, wrong, or act ….” See State v. Thompson, 

.

This statement also did not necessarily refer to the “commission of any crime,

wrong, or act.” 

 Thus, we conclude that this third argument is without merit.

       {¶58} Fourth, Officer Westenbarger testified that, during a police interview,

Scott mentioned that “he had been stopped before by the police for his driving

manners.” (Tr. 265). As an initial matter, we note that an expert testified that Scott

was driving at fifty-three miles per hour down a street where the posted speed limit

was thirty-five miles per hour. Further, in the security camera footage admitted at

trial, Scott can be seen driving his vehicle at a speed that clearly exceeded the pace

of the flow of traffic. Thus, even if the challenged testimony were considered as

evidence of his propensity to speed, such evidence is not prejudicial where video


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Case No. 13-24-10


footage of Scott speeding was introduced into evidence at trial. For these reasons,

we conclude that, even if the admission of this testimony constituted an error, any

such error was harmless. See State v. Morris, 

, ¶ 32. Thus, we

conclude that this fourth argument is without merit.

         {¶59} Finally, Scott asserts that the State committed a Doyle violation in a

line of questioning with Officer Westenbarger. As a general matter,

         ‘Once a person invokes his or her Fifth Amendment right to remain
         silent, the State cannot use the person’s silence [either in pre-arrest
         or post-arrest circumstances] as substantive evidence of guilt in its
         case-in-chief.’

(Brackets sic.) State v. Jones, 

 (11th Dist.), quoting State v.

Bennett, 

 (9th Dist.).


         {¶60} Under Doyle v. Ohio, the “use of a defendant’s post-arrest, post-

Miranda silence for impeachment purposes violates the Due Process Clause ….”

State v. Young, 

, citing Doyle, 

 (1976). In

State v. Leach, the Ohio Supreme Court extended this principle, holding that “[u]se

of a defendant’s pre-arrest silence as substantive evidence of guilt violates the Fifth

Amendment privilege against self-incrimination.”                      Leach, 

, at

syllabus.2     These rules “enforce[] one of the underlying policies of the Fifth


2
 Scott argues that the State committed a Doyle violation in a line of questioning with Officer Westenbarger.
However, the challenged testimony was not used for impeachment purposes, and no other testimony
establishes whether Scott had been Mirandized or arrested. For this reason, we will proceed under the rule
announced in Leach, 

, at syllabus.

                                                   -27-
Case No. 13-24-10


Amendment, which is to avoid having the jury assume that a defendant’s silence

equates with guilt.” State v. Perez, 

 (3d Dist.).

       {¶61} “However, the introduction of evidence regarding a defendant’s

decision to remain silent does not constitute reversible error if, based on the whole

record, the evidence was harmless beyond any reasonable doubt.” State v. Chavez,

 (3d Dist.), quoting State v. Zimmerman, 

(1985). The Ohio Supreme Court has held that “[a] single comment by a police

officer as to a suspect’s silence without any suggestion that the jury infer guilt from

the silence constitutes harmless error.” State v. Hecox, 

 (3d

Dist.), quoting State v. Treesh, 

 (2001).

       {¶62} At trial, Officer Westenbarger testified that Scott voluntarily came to

the police department for an interview two days after the incident. His testimony

indicated that, during this interview, Scott fully explained his version of what

transpired prior to the accident. After testifying about the police interview, Officer

Westenbarger then mentioned that Scott “declined” to provide a written statement

of what had transpired. (Tr. 267). He then testified that Scott consented to a search

of his vehicle.

       {¶63} On appeal, Scott asserts that the State committed reversible error by

eliciting testimony about his decision not to provide a written statement to the

police. However, this comment came after an extensive discussion of what Scott


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Case No. 13-24-10


had told the police during a police interview. In this context, the challenged

testimony simply suggests that Scott opted not to reduce his oral statements to the

police into writing.

       {¶64} Further, no statement from Officer Westenbarger indicates that Scott

ever invoked his right to remain silent or suggests that the jury should infer guilt

from his decision not to write down his statement. State v. Abraham, 2012-Ohio-

4248, ¶ 45 (9th Dist.). Even if this testimony was admitted in error, we conclude

that this “brief and isolated” remark was harmless beyond a reasonable doubt. 

quoting State v. Powell, 

. Thus, we conclude that this fifth

argument is without merit. Accordingly, the sixth assignment of error is overruled.


                                    Conclusion

       {¶65} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Seneca County Court of Common Pleas is

affirmed.

                                                               Judgment Affirmed

WALDICK, P.J. and MILLER, J., concur.

/hls




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