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Univ. of South Carolina School of Law

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Saturday, November 1, 2008

Or Maybe In the County Jail: Court Of Appeals Of Ohio Finds Lay Witness Testinmony On Intoxication Was Proper

The recent opinion of the Court of Appeals of Ohio in State v. Morgan, 2008 WL 4693134 (Ohio App. 9 Dist. 2008), is fairly representative of most opinions in its conclusion that lay witnesses can testify regarding the apparent intoxication of a witness or party.  In Morgan, Matthew Morgan allegedly violated both the law and the Ninth Commandment, resulting in him being convicted of two counts of gross sexual imposition for grabbing the crotch and breast of his fiancée's friend, Mrs. Sasha Vormelker.

According to Vormelker,

     On the day in question, she planned to pick up Morgan's fiancée and others so that they could watch movies at her house.  Morgan told her that his fiancée was not there, but he offered her a piece of paper that he claimed contained a telephone number where his fiancée could be reached. When she approached Morgan to take the number, he "[g]rabbed [her] through [her] sweatpants in the crotch area."  When Mr. Morgan grabbed her, he said, "[c]ome on, come on, no one needs to know." Vormelker, however, "turned around and pulled away and [the sweatpants] ripped, and two of his fingers went up a little bit." She was not wearing any underwear, and when she pulled away from Morgan she "felt a bit of an insertion of...fingers."

     Vormelker went toward the door to leave, but Morgan stood up and grabbed her right arm with his left hand and "stuck his right hand down [her] shirt...[and] touch[ed]...[her] breast." Morgan then continued saying, "[c]ome on, come on" while groping her.  Morgan's speech was slurred and, based on the way he was walking and acting, Vormelker believed him to be intoxicated.

A couple of hours later, a police officer questioned Morgan and also thought that he appeared to be intoxicated.  And at Morgan's trial, both Vormelker and the officer testified concerning these observations, and Morgan contended on appeal, inter alia, that this constituted improper lay witness testimony on intoxication, a subject which requires expert testimony.  The Court of Appeals of Ohio disagreed, concluding that:

     "A lay witness may offer opinions and inferences provided they are both rationally based on his perception and helpful to the jury's understanding of the testimony or determination of a fact in issue. Evid. R. 701. 'It is generally accepted that virtually any lay witness, including a police officer, may testify as to whether an individual appears intoxicated.'"

The court then found that the testimony of both witnesses was properly received because:

     "[t]hey both testified to specific observations that led them to that belief, such as, beer cans strewn around the room, slurred speech, and bloodshot, watery eyes. Both witnesses testified that they had some experience observing drunk people on prior occasions."

As I said at the opening, the courts' decision is fairly representative in that "[t]ypical examples of the kind of opinion evidence contemplated by Rule 701 include a person's age, a person's anger or excitement, the value of one's own property, a person's intoxication, distance, sound, or the speed of a vehicle." Douglas R. Richmond, Regulating Expert Testimony, 62 Mo. L. Rev. 485, 535 (1997).  And I think that the ruling comports with the general belief that, as with obscenity, we know intoxication when we see it.   

-CM

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