State v. Line , 2019 Ohio 4221 ( 2019 )

[Cite as State v. Line, 2019-Ohio-4221.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-19-07
PLAINTIFF-APPELLEE,
v.
LARRY LINE, OPINION
DEFENDANT-APPELLANT.
Appeal from Lima Municipal Court
Trial Court No. 18TRC12200
Judgment Affirmed
Date of Decision: October 15, 2019
APPEARANCES:
Blaise Katter for Appellant
Anthony M. DiPietro for Appellee
Case No. 1-19-07
WILLAMOWSKI, J.
{¶1} Defendant-appellant Larry Line (“Line”) brings this appeal from the
judgment of the Lima Municipal Court finding Line guilty of OVI, but not guilty of
driving through a red light. Line argues on appeal that the evidence was insufficient
to support his conviction and that he was denied the effective assistance of counsel.
For the reasons set forth below, the judgment is affirmed.
{¶2} On November 10, 2019, Line was cited for an OVI in violation of R.C.
4511.19(A)(1)(a) and failing to stop at a red light in violation of local ordinance
414.03(C)(1)(a). Doc. 2. After pleading not guilty, Line retained counsel to
represent him. Doc. 4 and 5. Although counsel noted that she intended to file a
motion to suppress, no motion was filed. Doc. 6. A trial was held to the court on
January 23, 2019. Doc. 7. At the conclusion of the trial, the trial court found Line
guilty of the OVI and imposed sentence. Id. The trial court found Line not guilty
of failing to stop at a red light. Doc. 8. Line filed a timely notice of appeal. Doc.
11. On appeal, Line raises the following assignments of error.
First Assignment of Error
[Line] was denied the effective assistance of counsel in violation of
the Sixth Amendment to the Constitution and Article I, Section 10
of the Ohio Constitution.
Second Assignment of Error
There was insufficient evidence to convict [Line] of being “under
the influence” in violation of R.C. 4511.19(A)(1)(a)
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In the interests of clarity, we will address the assignments of error out of order.
Sufficiency of the Evidence
{¶3} In his second assignment of error, Line argues that the evidence was
insufficient to support his conviction for OVI. “Under the sufficiency of the
evidence standard, ‘[t]he 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.’ ” State v.
Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 28, 102 N.E.3d 86quoting State v. Potts, 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 12 (3d Dist.). Line was
cited with a violation of R.C. 4511.19(A)(1)(a). In order to prove this violation in
this case, the State was required to show that he 1) operated a vehicle 2) in the State
of Ohio 3) while under the influence of alcohol.
{¶4} A review of the record shows that there is no question that Line was
driving a car in the State of Ohio. The only issue was whether he was under the
influence of alcohol at the time. Patrolman Ben Thompson (“Thompson”) testified
at trial that he observed Line in his vehicle leaving the parking lot of a bar in Lima,
Ohio at approximately 1:59 a.m. Tr. 5-6. Thompson indicated that he observed the
vehicle roll through a stop sign and at that time, he decided to stop the vehicle. Tr.
8. When Thompson made contact with Line, he noticed that he had bloodshot,
glassy eyes, slurred speech, and had an odor of an alcoholic beverage on his breath.
Tr. 8-9. Thompson identified Line as the driver of the vehicle. Tr. 10.
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{¶5} Patrolman Spencer Cooper (“Cooper”) testified that after Thompson
stopped Line, he arrived on the scene. Tr. 14. Cooper testified that upon
approaching Line, he immediately smelled a strong odor of an alcoholic beverage
and noted that Line had slow, methodical movements. Tr. 22. Cooper testified that
at some point, Line admitted “that he had drank two Roman cokes. I believe he had
meant rum and cokes, but he did admit that he had two alcoholic beverages that
night.” Tr. 24. Cooper asked Line to perform the field sobriety tests and Line
agreed. Tr. 24. When Cooper conducted the HGN test on Line, Cooper noted four
out of six clues. Tr. 25. Cooper testified that his training and experience told him
that a person with four out of the six clues was over the .08 alcoholic limit for
consumption of alcohol. Tr. 26. Based upon the evidence before him, Cooper
placed Line under arrest for OVI. Tr. 26.
{¶6} Line argues on appeal that there was insufficient evidence of
intoxication. In support of this argument, Line notes that the State failed to put the
NHTSA manual regarding the HGN test into evidence and thus relying on it to show
intoxication was inappropriate. At oral argument, the State conceded that the better
practice would have been to submit a copy of the manual to the court, but argued
the manual was not necessary to be able to use the HGN test for signs of
intoxication. The Ohio Supreme Court has previously held “that the HGN test has
been shown to be a reliable indicator of BAC levels.” State v. Bresson, 51 Ohio
St.3d 123, 128, 554 N.E.2d 1330 (1990). “Accordingly, results of this test are
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admissible so long as the proper foundation has been shown both as to the officer’s
training and ability to administer the test and as to the actual technique used by the
officer in administering the test.” Id. “[T]he only requirement prior to admission
[of the HGN test results] is the officer’s knowledge of the test, his training, and his
ability to interpret his observations.” Id. at 129.
{¶7} Here, Cooper testified that he was trained in the proper technique for
conducting the HGN test and then practiced doing so in “wet labs”. Tr. 15-16. The
wet labs are when they randomly test volunteers to determine if they have consumed
alcohol without knowing which volunteers have and which have not. Tr. 16-17.
Cooper testified that the more alcohol one has consumed, the more nystagmus can
be observed. Tr. 18. Cooper testified as to the procedure he was taught to use while
conducting an HGN test. Tr. 18-21. Cooper further testified that he conducted the
HGN test on Line and observed lack of smooth pursuit in both eyes and the distinct
and sustained nystagmus at maximum deviation in both eyes, making four out of six
clues. Tr. 25. However, Cooper did not observe nystagmus onset prior to 45
degrees. Tr. 25-26. From his training, Cooper was able to determine that Line was
over the legal limit of .08 BAC. Tr. 26. This court notes that Line was not charged
with having a BAC over .08, but rather with driving while impaired. Thus, the
actual level of BAC is not critical in this case. We note that “a properly qualified
officer may testify at trial regarding a driver’s performance on the HGN test as to
the issue of probable cause to arrest and use the same in forming an opinion whether
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the suspect is under the influence of alcohol.” State v. Smith, 5th Dist. Richland No.
09-CA-55, 2009-Ohio-5651, ¶ 17. This is true even when the results would not be
admissible to show the exact alcohol concentration of the driver. Id.{¶8} In addition to the HGN test, both officers testified to other signs of
impairment. Thompson testified that he saw Line fail to come to a complete stop at
a stop sign. A review of the dash camera footage confirms this testimony.
Thompson also testified to Line having bloodshot eyes, a strong odor of an alcoholic
beverage around his person, and slurred speech. Cooper testified to these same
signs, noting that the red, bloodshot, glassy eyes are “a sign of intoxication due to
the lack of oxidation from the eyes, and they – they constrict. That’s why they
become red.” Tr. 23. Cooper also testified that when he asked Line questions, he
noted the following.
[H]e kind of had a – a dazed look. He was looking down, and it’s
– time he had moved, they were – they were very slow. Being that
alcohol is a depressant, it slows your – your fine motor
movements.
Tr. 23. Viewing this evidence in a light most favorable to the prosecution, there
was evidence presented on each of the elements of the OVI offense. There was
testimony that Line was driving his vehicle in Lima, Ohio and that he was under the
influence of alcohol at the time, including his own admission of alcohol
consumption, the bloodshot, glassy eyes, the slurred speech, the slow and
methodical movements, and the presentation of four out of six clues on the HGN
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test showing alcohol consumption. Cooper testified that he believed Line was
impaired at that time and that was why he arrested Line. Tr. 26. Viewing the
evidence in a light most favorable to the State a rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.
Sullivan, supra. The second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶9} Line alleges in the first assignment of error that he was denied the
effective assistance of counsel.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
3135, 57 L.Ed.2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
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violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.
{¶10} In support of the assignment of error, Line claims that his trial counsel
erred by 1) failing to file a motion to suppress; 2) failing to challenge the admission
of the HGN test under R.C. 4511.19(D)(4); and 3) failing to advocate for Line at
trial. Line also argues that even if all of the alleged errors are not determined to be
prejudicial, the cumulative effect of them was prejudicial. The first argument is that
counsel was ineffective for failing to file a motion to suppress. “[T]he failure to file
a motion to suppress constitutes ineffective assistance of counsel only when the
record establishes that the motion would have been successful if made.” Walker,
supra at ¶ 23 quoting State v. Brown, 12th Dist. Warren No. CA2002-03-026, 2002-
Ohio-5455, ¶ 11. Line argues that since there was no evidence he ran a red light,
the officer lacked probable cause to stop him. However, a review of the testimony
of Thompson and the video shows that although Line did not go through a red light,
he did commit a traffic violation by failing to come to a complete stop at a stop sign.
“[I]f an officer's decision to stop a motorist for a criminal violation, including a
traffic violation, is prompted by a reasonable and articulable suspicion considering
all the circumstances, then the stop is constitutionally valid.” State v. Mays, 119
Ohio St.3d 406, 2008-Ohio-4539, ¶ 8, 894 N.E.2d 1204. The trial court specifically
noted the following concerning the officer’s probable cause to stop Line.
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[T]he defendant was observed operating a motor vehicle, leave
Lombardo’s.
He left, didn’t place his car in the lane of travel, went across at
least three lanes into a street and then was in a lane of travel,
which is unusual driving behavior. He rolled a stop sign, didn’t
come to a complete stop. That was evident from the video.
Tr. 31-32. Since there was a traffic violation, regardless of whether it was the
violation for which Line was cited and later acquitted, the officer had probable cause
to stop the vehicle. Thus, any motion to suppress would not have been successful.
The failure to file the motion is not ineffective assistance of counsel because it was
not prejudicial.
{¶11} The second argument for the ineffective assistance of counsel claim is
that counsel failed to object to the admission of the HGN test results since the
NHSTA manual was not admitted as an exhibit. Line argues that the State failed to
elicit testimony from Cooper regarding the test or his training and therefore the tests
should have been excluded. A review of the record shows that Cooper offered
extensive testimony regarding his training in administering the tests, the test itself,
and the proper procedures for administering the test. See Tr. 15-21. Since this was
a bench trial and nothing in the record indicates that the evidence was used for an
improper purpose, there would be no prejudice from the alleged error. State v.
Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, ¶ 39, 62 N.E.3d 153.
{¶12} Line next argues that counsel was ineffective for failing to advocate
for him at trial. In support of this claim, Line points to six issues: 1) waiver of
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opening statement; 2) failure to cross-examine Thompson regarding impairment; 3)
failure to cross-examine Cooper; 4) waiving closing argument; 5) failure to offer
mitigation; and 6) failure to ask for a stay pending appeal. This Court notes that the
opening statement is not evidence and was waived by both sides in this case.
“[T]rial counsel's failure to make an opening statement * * * does not automatically
establish the ineffective assistance of counsel.” State v. Myers, 154 Ohio St.3d 405,
2018-Ohio-1903, ¶ 189, 114 N.E.3d 1138. Line does not provide any argument as
to how this was an error.
{¶13} Next, Line claims that counsel was ineffective for not fully cross-
examining Thompson and not cross-examining Cooper at all. “The scope of cross-
examination falls within the ambit of trial strategy, and debatable trial tactics do not
establish ineffective assistance of counsel.” State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, ¶ 101, 848 N.E.2d 810. Line does not argue what would have
been different if counsel had chosen a different strategy. Counsel cross-examined
Thompson about the stop and Line was found not guilty on the charge of running
the red light. However, the failure to come to a complete stop at the stop sign was
evident on the video and supported by Thompson’s testimony. Thompson and
Cooper both testified as to the physical clues of alcohol consumption and
impairment, including Line’s admission. Given this evidence, Line offers no
questions which could have been asked by counsel that would cause the trial court
to find him not guilty. Line argues that the result would be different, but presents
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no argument as to why this would be, just a conclusory statement that it would be.
Conclusory statements alone are insufficient to find that counsel was ineffective.
See State v. Gibson, 78 Ohio App.3d 501, 605 N.E.2d 441 (10th Dist. 1992).
{¶14} Line also claims counsel was ineffective for failing to make a closing
argument and for not speaking in mitigation for Line at sentencing. The waiver of
closing arguments is a tactical decision and is thus not ineffective assistance of
counsel. State v. Burke, 73 Ohio St.3d 399, 405, 1995-Ohio-290, 653 N.E.2d 242,
State v. Frierson, 8th Dist. Cuyahoga No. 105618, 2018-Ohio-391, ¶ 31, 105 N.E.3d
583 and State v. Guysinger, 4th Dist. Ross No. 15CA3514, 2017-Ohio-1167. Line
does not argue with any specificity how this prejudiced him. Although this Court
does recognize that counsel’s performance may not have been optimal by making
no arguments on behalf of her client, a review of the record along with the
allegations in the brief do not point to any evidence which could have been argued
that would have changed the outcome of the case. Prior to sentencing, Line spoke
with the judge and he admitted having consumed some alcohol earlier in the day.
Tr. 35-37. He also was able to ask for the trial court to reduce the sentence and the
trial court considered this and permitted him to complete 20 of the 30 day jail
sentence under house arrest. Tr. 39. No evidence in the record indicates that had
the attorney made the argument, the outcome would have been different. Thus, the
record does not show that the failure to make the arguments prejudiced Line.
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Without a showing of prejudice, there can be no ineffective assistance of counsel.
Walker, supra.
{¶15} Line also claims that counsel was ineffective for failing to ask for a
stay of sentence pending appeal. A review of the record does not provide any
indication that this would likely have changed the outcome. Additionally, having
found that the conviction for the OVI was proper, the sentence would have to be
served eventually anyway. Thus, there is no prejudice in any alleged error by
counsel.
{¶16} Finally, Line claims that the cumulative effect of the errors resulted in
him having ineffective assistance of counsel. “[A] judgment may be reversed if the
cumulative effect of multiple errors deprives a defendant of his constitutional rights
even though, individually, the errors may not rise to the level of prejudicial error or
cause for reversal.” In re Guardianship of Clark, 10th Dist. Franklin No. 09AP-96,
2009-Ohio-3486, ¶ 27. “Merely alleging multiple errors ‘does not require reversal
if those errors still, when taken in context of the entire trial, do not produce an unfair
trial.’” Ohio Dept. of Natural Resources v. Knapke, 3d Dist. Mercer No. 10-14-03,
2015-Ohio-1691, ¶ 45, 33 N.E.3d 528. A conviction will only be reversed for the
cumulative effect of errors where a defendant has been deprived of the right to a fair
trial even though the individual errors do not provide a basis for reversal. State v.
Garner, 74 Ohio St.3d 49, 64, 1995-Ohio-168, 656 N.E.2d 623. The doctrine does
not apply unless multiple instances of harmless error are found. Id. This doctrine
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has also been applied to multiple alleged errors of trial counsel. City of Columbus
v. Beasley, 10th Dist. Franklin No. 17AP-629, 2019-Ohio-719. However when none
of the alleged individual claims of ineffective assistance of counsel has merit,
ineffective assistance of counsel is not established “by combining those
unsuccessful claims together. Id. at ¶ 80. Here, all of Line’s alleged errors by trial
counsel have been determined to be meritless. Thus, there is no cumulative error.
The first assignment of error is thus overruled.
{¶17} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Lima Municipal Court is affirmed.
Judgment Affirmed
SHAW, J., and PRESTON, J., concur
/hls
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