[Cite as State v. Dudley , 2021-Ohio-478.]

COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Patricia A. Delane y , J. -vs- Case No. 2020 CA 00016 SARAH E. DUDLEY Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Fairfield County Municipal Court, Case No. TRC1905980A

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: Februar y

19, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t RANDALL T. ULLOM SAMUEL H. SHAMANSKY Cit y of Lancaster Law Director & DONALD L. REGENSBURGER Prosecutor’s Office COLIN E. PETERS ASHTON C. GAITANOS DAVID R. KLEMP 523 South Third Stree t Assistant Cit y Prosecuto r Columbus, Ohio 43215 136 West Main Stree t P.O. Box 1008 Lancaster, Ohio 43130Fairfield Count y , Case No. 2020 CA 00016 2

Hoffman, J. {¶1} Defendant-appellant Sarah E. Dudley appeals the judgment entere d by the Fairfield County Municipal Court convicting her of operating a motor vehicle with a prohibited breath alcohol content (R.C. 4511.19(A)(1)(d)) follo wing her plea of no contest, and sentencing her to 170 days in jail with 167 suspended and t hree days credited for completion of a driver’s intervention program. Plaintiff-appel lee is the state of Ohio. STATEMENT OF THE CASE 1 {¶2} On June 22, 2019, Appellant was stopped by Trooper Adam Dickers on of the Ohio State Highway Patrol. She was cited with driving left of center (R.C. 4511.25), driving with a prohibited breath alcohol content (R.C. 4511.19( A)(1)(d)), and driving while impaired (R.C. 4511.19(A)(1)(a)). {¶3} Appellant filed a motion to suppress the chemical breath test, which was overruled by the trial court on November 8, 2019. After severa l continuances and a settlement conference, the case was set for jury trial on March 3, 2020. {¶4} On the morning of jury trial, Appellant filed a motion to conti nue the trial in order to secure an expert witness to testify. Appellant had no t previously disclosed the expert witness to the State in accordance with Crim. R. 16(K). The trial court overruled

the motion. {¶5} Also on the morning of trial, the State filed a motion in limin e to preclude testimony from Appellant’s expert, to prevent Appellant from in troducing a video of the traffic stop and field sobriety testing, and to preclude attack s on the general reliability of the breathalyzer machine used in this case and the margin of er ror or variance on the

1 A rendition of the facts is unnecessary for our resolution of the issues raised on appeal.Fairfield Count y , Case No. 2020 CA 00016 3

machine. The trial court ruled on the motion in limine after a hearing, excluding Appellant’s expert witness’s testimony pursuant to Crim. R. 12( K) and excluding attacks on the reliability of the breathalyzer. {¶6} The State dismissed the charge of driving while intoxicated pur suant to R.C. 4511.19(A)(1)(a) on the morning of trial, intending to proceed only on the charge of driving with a prohibited breath alcohol content. Following the trial court’s rulings on the State’s motion in limine and Appellant’s motion to continue, Appellant entered a plea of no contest to the charge of driving with a prohibited breath alcohol conte nt. The left of center charge was dismissed. She was convicted of driving with a prohibited breath alcohol content and sentenced to 170 days in jail with 167 suspended and three days credited for completion of a driver’s intervention program, fined $375.00, and placed o n community control for two years. {¶7} It is from the March 3, 2020 judgment of the Fairfield County M unicipal Court Appellant prosecutes her appeal, assigning as error:

I. THE TRIAL COURT DEPRIVED APPELLANT HER RIGHTS TO DUE PROCESS OF LAW, CONFRONTATION, AND TO PRESENT A COMPLETE DEFENSE BY PROHIBITING ANY CROSS-EXAMINATION OR ARGUMENT REGARDING THE SPECIFIC BREATH TEST MACHINE OR RESULT IN THIS CASE. II. THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED APPELLANT’S RIGHT TO DUE PROCESS OR TO PRESENT A COMPLETE DEFENSE BY REFUSING TO GRANT HER A REASONABLEFairfield Count y , Case No. 2020 CA 00016 4

CONTINUANCE TO SECURE HER EXPERT’S REPORT AND TESTIMONY, WHICH WAS NECESSITATED BY THE STATE’S

GAMESMANSHIP. III. THE TRIAL COURT’S RULING PREVENTING APPELLANT FROM CALLING HER EXPERT WITNESS DENIED HER THE OPPORTUNITY TO PRESENT THE VIDEO OF HER TRAFFIC STOP AT TRIAL, VIOLATING HER RIGHT TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

I., III. {¶8} In her first and third assignments of error, Appellant argues t he trial court erred in its rulings on the State’s motion in limine preventing her from attacking the reliability of the breathalyzer at trial and preventing her fro m calling her expert witness. 2 {¶9} A ruling on a motion in limine does not preserve the error for appeal, and an appellate court need not review the ruling unless the claime d error is preserved by an objection at trial. State v. Grubb , 28 Ohio St.3d 199, 503 N.E.2d 142, paragraph two of the syllabus (1986). Further, a no contest plea generally waiv es any claim of error with respect to an adverse ruling on a motion in limine. See, e.g., State v. Pyo , 5th Dist. Delaware No. 04CAA01009, 2004-Ohio-4768, ¶ 19.

2 While Appellant argues the trial court erred in preventing her from presenting the video of her traffic stop and field sobriety tests, the trial court’s entry does not addr ess this branch of the State’s motion in limine.Fairfield Count y , Case No. 2020 CA 00016 5

{¶10} Appellant argues the ruling on the State’s motion in limine is not waived by her plea of no contest in the instant case, relying on State v. French , 72 Ohio St.3d 446, 1995-Ohio-32, 650 N.E.2d 887. In French, the Ohio Supreme Court discussed the function of a motion in limine as opposed to a motion to suppre ss evidence:

A “motion in limine ” is defined as “[a] pretrial motion requesting [the] court to prohibit opposing counsel from referring to or offerin g evidence on matters so highly prejudicial to [the] moving party that curati ve instructions cannot prevent [a] predispositional effect on [the] jury.” Blac k's Law Dictionary, supra, at 1013. The purpose of a motion in limine “is to avoid injection into [the] trial of matters which are irrelevant, ina dmissible and prejudicial[,] and granting of [the] motion is not a ruling on evidence and, where properly drawn, granting of [the] motion cannot be error. ” Id . at 1013– 1014. See State v. Maurer (1984), 15 Ohio St.3d 239, 259, 15 OBR 379, 396, 473 N.E.2d 768, 787. A ruling on a motion in limine reflects the court's anticipated treatment of an evidentiary issue at trial and, as such, is a t entative, interlocutory, precautionary ruling. Thus, “the trial court is at liberty to change its ruling on the disputed evidence in its actual contex t at trial. Finality does not attach when the motion is granted.” Defiance v. Kretz (1991), 60 Ohio St.3d 1, 4, 573 N.E.2d 32, 35, citing State v. Grubb (1986), 28 Ohio St.3d 199, 201–202, 28 OBR 285, 288, 503 N.E.2d 142, 14 5.Fairfield Count y , Case No. 2020 CA 00016 6

Confusion and inaccuracy may arise, however, because a motion in

limine may be used in two ways. It may be used as a preliminary means of raising objections to evidentiary issues to prevent prejudicial questions and

statements until the admissibilit y of the questionable evidence can be determined outside the presence of the jury. It may also be use d as the functional equivalent of a motion to suppress evidence that is either not competent or improper due to some unusual circumstance not risi ng to the level of a constitutional violation. Palmer, Ohio Rules of Evi dence, Rules Manual (1984) 446, cited in State v. Maurer , supra , 15 Ohio St.3d at 259, 15 OBR at 396–397, 473 N.E.2d at 787, fn. 14.

{¶11} Id. at 449-450, 650 N.E.2d at 890-91. {¶12} In the instant case, the State’s motion in limine was not the f unctional equivalent of a motion to suppress. Appellant previously filed a motion to suppress the results of the breathalyzer test, and has not assigned error to the trial court’s judgment overruling her motion. We find the State’s motion in limine fa lls squarely within the definition of a motion in limine as set forth by the French court, and therefore Appellant has waived any error in the trial court’s ruling by her plea of no contest. {¶13} The first and third assignments of error are overruled.

II. {¶14} In her second assignment of error, Appellant argues the trial c ourt erred in denying her motion to continue, filed on the morning of trial.Fairfield Count y , Case No. 2020 CA 00016 7

{¶15} The grant or denial of a continuance is a matter which is entru sted to the broad, sound discretion of the trial judge, and an appellate co urt must not reverse the denial of a continuance unless there has been an abuse of discr etion. State v. Unger , 67 Ohio St.2d 65, 67, 423 N.E.2d 1078, 1080 (1981). An abuse of d iscretion is more than a mere error in judgment; it is a “perversity of will, passion, p rejudice, partiality, or moral delinquency.” Pons v. Ohio State Med. Bd ., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). {¶16} In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing c ounsel and the court; whether the requested delay is for legitimate reasons or whethe r it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumst ance which gives rise to the request for a continuance; and other relevant factors, depe nding on the unique facts

of each case. Unger , supra , at 67–68, 423 N.E.2d at 1080. {¶17} Appellant argues a continuance was necessary to secure an exper t to testify as to the charge of driving with a prohibited breath alcohol co ntent because of the State’s “gamesmanship” in dismissing the charge of driving while impair ed at the last minute. However, the charge of driving with a prohibited breath alcohol content was always a part of this case, and thus Appellant was always required to defend the charge. Nothing in the circumstances of the driving with a prohibited breath alcoh ol content charge under R.C. 4511.19(A)(1)(d) was changed by the State’s dismissal of t he R.C. 4511.19(A)(1)(a) charge. Appellant contributed to the circumstance which gave rise to the need for the continuance by failing to timely secure an expert to defend a c harge which was a part ofFairfield Count y , Case No. 2020 CA 00016 8

the case from the beginning. We find the trial court did not a buse its discretion in denying Appellant’s motion to continue. {¶18} The second assignment of error is overruled. {¶19} The judgment of the Fairfield Co unty Municipal C ourt is affirme d.

By: Hoffman, J. Gwin, P.J. and Delaney, J. concur