State v. Abass , 2017 Ohio 7034 ( 2017 )

[Cite as State v. Abass, 2017-Ohio-7034.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 2016CA00200
:
YUNAS A. ABASS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal
Court, Case No. 2016-TRC-02464
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 31, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ROBERT A. ZEDELL JUDITH M. KOWALSKI
Massillon Law Department 333 Babbitt Road Suite 323
Two James Duncan Plaza Euclid, OH 44123
Massillon, OH 44646
Stark County, Case No. 2016CA00200 2
Delaney, P.J.
{¶1} Appellant Yunas A. Abass appeals from the October 13, 2016 Journal Entry
and Order of the Massillon Municipal Court. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the transcript of appellant’s court
trial. Appellee’s exhibits in the record include a DVD of the traffic stop, a certified copy of
appellant’s prior out-of-state O.V.I. conviction, the B.M.V. 2255 form signed by appellant,
the B.A.C. Datamaster test form, and the evidence ticket generated by the Datamaster.
{¶3} This case arose on April 9, 2016 when Trooper Whitacre of the Ohio State
Highway Patrol observed a vehicle traveling in excess of the posted speed limit of 45
miles per hour southbound on Everhard Road in Jackson Township, Stark County.
Whitacre checked his estimate with radar and established the vehicle’s speed was 57
miles per hour.
{¶4} Whitacre performed a traffic stop and learned the vehicle was driven by
appellant, the sole occupant. The trooper requested appellant’s license, vehicle
registration, and proof of insurance. Appellant responded that he lived “right there,”
pointing to a location across the street and Whitacre repeated his request. Appellant then
rummaged in the glove compartment, allowing the vehicle to roll forward to the extent that
the trooper had to step out of the way to avoid having his foot run over.
{¶5} Whitacre noticed a strong odor of an alcoholic beverage emanating from
the vehicle and then directly from appellant once he was out of the vehicle. Appellant’s
eyes were bloodshot and glassy. Whitacre asked appellant how much he had to drink
that evening; appellant at first said nothing, then said “not much,” and later admitted to
Stark County, Case No. 2016CA00200 3
consuming a bottle of wine approximately one hour before the traffic stop.1 When asked
where he was coming from, appellant said he was “just out.”
{¶6} Whitacre asked appellant to submit to a series of standardized field sobriety
tests and appellant complied. Whitacre has been trained and certified in administering
these tests in compliance with N.H.T.S.A. guidelines. Whitacre observed six out of six
possible clues of impairment in appellant’s eyes on the horizontal gaze nystagmus test.
On the walk and turn test, appellant failed to maintain his starting position, took steps
forward, counted inconsistently, and made an improper turn. On the one-leg stand test,
appellant swayed from side to side and put his foot down and his arm out for balance.
Based upon appellant’s performance on the tests, his admission to drinking, and the other
clues he observed, Whitacre arrested appellant for O.V.I.
{¶7} Whitacre recalled that appellant was unusually distraught when he was
placed under arrest and seated in the rear of the patrol car. Appellant composed himself
by the time they reached the State Highway Patrol post. Whitacre learned appellant had
a prior O.V.I. conviction in Michigan which had not at first appeared on appellant’s driving
record. At the post, Whitacre read the B.M.V. 2255 form to appellant, informing him of
the consequences of refusal to take a chemical test. Appellant was offered a breath test
and refused.
{¶8} Upon cross-examination, Whitacre was asked whether he offered appellant
a portable breath test, or P.B.T., at the scene of the traffic stop. Whitacre testified he did
in fact offer appellant a P.B.T. but appellant became “upset” and refused to take it.
1Appellant disputes this statement and testified he did not tell the trooper he drank an
entire bottle of wine.
Stark County, Case No. 2016CA00200 4
{¶9} Appellant testified on his own behalf at trial. Appellant is a reservoir
engineer who is in the area for temporary work; his wife and children live out of state.
English is not his first language and he said there may have been misunderstandings in
his conversation with the trooper. He said he ate dinner at Jerzee’s Pub a short distance
away and was stopped almost directly in front of his residence. He was extremely
nervous when he spoke with the trooper because of his recent O.V.I. conviction in
Michigan; he was not permitted to drink alcoholic beverages as a result of his probation
on that case. Appellant said his nervousness caused him to let his foot off the brake when
the vehicle rolled slightly. Appellant testified he was distraught about the arrest because
he was worried about the implications of drinking on the Michigan case.
{¶10} Appellant testified he told the trooper he drank a glass of wine, not a bottle
of wine. He further testified he is diabetic and has recently lost 40 pounds.
{¶11} Appellant was charged by uniform traffic ticket (U.T.T.) with one count of
O.V.I. pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, and one
count of speeding pursuant to R.C. 4511.21(C), a minor misdemeanor. Appellant
appeared at arraignment with counsel and entered pleas of not guilty. Counsel thereafter
was permitted to withdraw and appellant retained new counsel. New counsel filed a
motion to suppress on May 9, 2016 and a suppression hearing was scheduled for June
1, 2016.
{¶12} The record indicates that a pretrial was held on June 1, 2016, but not a
suppression hearing. A “Pretrial Order” from that date notes that, e.g., appellant withdrew
the motion to suppress and appellee was granted leave to amend the U.T.T. to reflect the
prior O.V.I. conviction.
Stark County, Case No. 2016CA00200 5
{¶13} On June 20, 2016, a third attorney entered a notice of appearance as
defense counsel.
{¶14} On September 28, 2016, appellee amended the U.T.T. to add a violation of
R.C. 4511.19(A)(2), a “refusal” O.V.I. with a prior conviction within 20 years.
{¶15} On October 13, 2016, appellant appeared with defense trial counsel and
waived his right to trial by jury. The matter proceeded to court trial. Appellant moved for
judgments of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and
at the close of all of the evidence but the motions were overruled. The trial court found
appellant guilty as charged and sentenced him to 10 days in the Stark County Jail and 60
days on electronically-monitored house arrest, in addition to alcohol treatment and other
standard O.V.I. penalties.
{¶16} Appellant now appeals from the October 13, 2016 Journal Entry and Order
of his conviction and sentence.
{¶17} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶18} “I. APPELLANT’S RIGHT TO BE FREE FROM UNREASONABLE
SEARCHES AND SEIZURES UNDER THE FOURTH AMENDMENT TO THE U.S.
CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION WAS
VIOLATED WHEN THE POLICE CONDUCTED AN INVESTIGATORY STOP WITHOUT
PROBABLE CAUSE.”
{¶19} “II. THE FINDING OF GUILTY IS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
Stark County, Case No. 2016CA00200 6
{¶20} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT IN DENYING THE MOTION FOR DISMISSAL PURSUANT TO RULE 29
OF THE OHIO RULES OF CRIMINAL PROCEDURE IN THAT THE EVIDENCE
PRESENTED WAS INSUFFICIENT AS A MATTER OF LAW.”
{¶21} “IV. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS.”
ANALYSIS
I.
{¶22} In his first assignment of error, appellant argues the traffic stop was not
supported by probable cause. Because this issue was not properly raised in the trial court
via a motion to suppress, we disagree.
{¶23} Appellant argues the de minimis traffic violation did not justify the prolonged
investigative stop resulting in the O.V.I. arrest. As appellant acknowledges, this argument
was raised in a motion to suppress which was later withdrawn.
{¶24} The record does not indicate why the suppression motion was withdrawn.
Ohio Traff.R. 11(B)(2)(a) states motions to suppress must be made before trial.
Appellant’s argument here is premised upon the argument made in the withdrawn motion
to suppress, which we cannot consider because the argument was never properly before
the trial court. We have previously stated we will not speculate as to what evidence may
have been developed at a suppression hearing that never took place. State v. Shepherd,
5th Dist. Richland No. 14CA63, 2015-Ohio-4330, ¶ 41.
{¶25} In the case of State v. Parkinson, 5th Dist. Stark No.1995CA00208,
unreported, 1996 WL 363435 (May 20, 1996) at *3, we observed that when counsel fails
Stark County, Case No. 2016CA00200 7
to file a motion to suppress, the record developed at trial is generally inadequate to
determine the validity of the suppression motion. This reasoning is applicable to the case
sub judice because based on the record, it is unclear whether appellant’s argument would
have been successful. State v. Culbertson, 5th Dist. Stark No. 2000CA00129, 2000 WL
1701230, *4 (Nov. 13, 2000). See also, State v. Hoover, 5th Dist. Stark No.
2001CA00138, 2001–Ohio–1964.
{¶26} We are generally reluctant to attempt to redress an appellate argument
seeking to demonstrate a motion to suppress would have been granted by the trial court
where such an argument essentially speculates as to evidence dehors the record. State
v. Dowding, 5th Dist. Stark No.2014 CA 00131, 2015–Ohio–1362, ¶ 53, citing State v.
Jackson, 5th Dist. Stark No.2005CA00198, 2006–Ohio–4453, ¶ 27. The same is true in
the instant case.
{¶27} Appellant’s first assignment of error is overruled.
II., III.
{¶28} Appellant’s second and third assignments of error are related and will be
considered together. Appellant argues his O.V.I. conviction is against the manifest weight
and sufficiency of the evidence. We disagree.
{¶29} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
Stark County, Case No. 2016CA00200 8
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶30} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶31} Appellant was convicted of O.V.I. pursuant to R.C. 4511.19(A)(1)(a) and
(A)(2). Those sections state in pertinent part:
(A)(1) No person shall operate any vehicle, streetcar, or
trackless trolley within this state, if, at the time of the operation, any
of the following apply:
(a) The person is under the influence of alcohol, a drug of
abuse, or a combination of them.
* * * *.
Stark County, Case No. 2016CA00200 9
(2) No person who, within twenty years of the conduct
described in division (A)(2)(a) of this section, previously has been
convicted of or pleaded guilty to a violation of this division, a violation
of division (A)(1) or (B) of this section, or any other equivalent offense
shall do both of the following:
(a) Operate any vehicle, streetcar, or trackless trolley within
this state while under the influence of alcohol, a drug of abuse, or a
combination of them;
(b) Subsequent to being arrested for operating the vehicle,
streetcar, or trackless trolley as described in division (A)(2)(a) of this
section, being asked by a law enforcement officer to submit to a
chemical test or tests under section 4511.191 of the Revised Code,
and being advised by the officer in accordance with section 4511.192
of the Revised Code of the consequences of the person's refusal or
submission to the test or tests, refuse to submit to the test or tests.
{¶32} Appellant argues the trooper arrested him based upon his failure on the
standardized field sobriety tests, but claims his performance on the tests may have been
affected by health conditions such as diabetes. Appellant did not advise the trooper of
any health conditions which would negatively affect his performance during the stop, and
there is no evidence in the record of any health condition alleged by appellant other than
his own testimony. Nor is there evidence of the effect of any such health condition on the
field sobriety tests, other than appellant’s self-serving speculation. We also note the
Stark County, Case No. 2016CA00200 10
record is replete with evidence supporting the trooper’s decision to arrest, independent of
the field sobriety tests.
{¶33} Appellant further argues that his alleged admission of drinking a “bottle” of
wine is belied by the video, which has technical problems including mismatched audio
and video. The trial court was in the best position to evaluate the video and the credibility
of the witnesses and to determine what amount appellant admitted to drinking. The
weight of the evidence and the credibility of the witnesses are determined by the trier of
fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶
79.
{¶34} Appellant argues, though, that the poor quality of the videotape creates
discrepancies in the evidence. We have reviewed the DVD and we agree it is of limited
evidential value, but the poor quality of one piece of appellee’s evidence does not render
appellant’s conviction against the manifest weight or sufficiency of the evidence. In State
v. Moore, 5th Dist. Stark No. 98-CA-00324, 1999 WL 770746, at *2, the appellant
“disparaged” a video, arguing it was of poor quality and did not depict appellant’s actions
as alleged by the state. We concluded the factfinder was given the opportunity to view
the video, as well as to assess all the other testimony and evidence presented. Id. In
Moore, as in the instant case, our review of the record leads us to conclude the trial court
did not clearly lose its way, but rather, there is sufficient, competent and credible evidence
in support of each of the elements of the crime charged to entitle a reasonable finder of
fact to conclude appellant was guilty beyond a reasonable doubt.
Stark County, Case No. 2016CA00200 11
{¶35} We find the trial court’s verdict was supported by sufficient evidence and
was not against the manifest weight of the evidence. Appellant’s second and third
assignments of error are overruled.
IV.
{¶36} In his final assignment of error, appellant argues he received ineffective
assistance of trial counsel. We disagree.
{¶37} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158(1955). “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690.
{¶38} Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Stark County, Case No. 2016CA00200 12
{¶39} Appellant first argues defense trial counsel was ineffective in withdrawing
the motion to suppress and/or in failing to renew the motion to suppress after substitute
counsel became involved. We disagree. A failure to file a motion to suppress constitutes
ineffective assistance of counsel only if, based on the record, the motion would have been
granted. State v. Umstead, 5th Dist. Holmes No. 16 CA 004, __N.E.3d__, 2017-Ohio-
698, ¶ 40, citing State v. Shepherd, 5th Dist. Richland No. 14CA63, 2015-Ohio-4330,
2015 WL 5917918, ¶ 39 and State v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d
1077 (3rd Dist.1996).
{¶40} As we observed in our discussion of appellant’s first assignment of error, it
is not possible to determine from a trial record whether a suppression motion would have
been successful. Furthermore, we must presume a properly licensed attorney executes
his or her duties in an ethical and competent manner. See State v. Smith, 17 Ohio St.3d
98, 100, 477 N.E.2d 1128 (1985). Under the circumstances presented, we are not inclined
to overcome this presumption with the limited information in the appellate record before
us.
{¶41} Appellant further argues defense trial counsel was ineffective because he
was silent “during crucial testimony.” Specifically, appellant cites debate between the
prosecutor, trooper, and trial court as to when or if appellant denied he had a prior O.V.I.
conviction during the traffic stop. Appellant infers his credibility was impugned and
defense counsel should have objected, although he fails to provide the basis for such an
objection. The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel. State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d
136 (1999), citing State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). The
Stark County, Case No. 2016CA00200 13
defendant must also show that he was materially prejudiced by the failure to object.
Holloway, 38 Ohio St.3d at 244.
{¶42} Even if counsel had objected to this conversation, the outcome of the trial
would not have been different. Despite appellant’s focus on the video quality and whether
certain statements were made during the stop, the totality of the evidence against
appellant is compelling. The evidence was heard by the trial court, not a jury, and the
judge was able to evaluate the video and the witnesses’ credibility.
{¶43} Appellant has not established that but for any alleged error of trial counsel,
he would not have been found guilty of O.V.I. Appellant thus has not established
ineffective assistance of counsel and his fourth assignment of error is overruled.
CONCLUSION
{¶44} Appellant’s four assignments of error are overruled and the judgment of the
Massillon Municipal Court is affirmed.
By: Delaney, P.J.,
Gwin, J. and
Wise, Earle, J., concur.