Toledo v. Taylor ( 2020 )

[Cite as Toledo v. Taylor, 2020-Ohio-3991.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals Nos. L-19-1205
L-19-1206
Appellee
Trial Court No. TRC-19-03599
v.
April Maria Taylor DECISION AND JUDGMENT
Appellant Decided: August 7, 2020
*****
David Toska, Chief Prosecutor, and Jimmie Jones, Assistant
Prosecutor, for appellee.
Tyler Naud Jechura, for appellant.
*****
ZMUDA, P.J.
I. Introduction
{¶ 1} In this consolidated appeal appellant, April Taylor, appeals the judgment of
the Toledo Municipal Court, sentencing her to ten days in jail after finding her guilty of
operating a motor vehicle under the influence of alcohol or drugs. Finding no error
below, we affirm.
A. Facts and Procedural Background
{¶ 2} On the early morning of February 23, 2019, appellant was operating her
vehicle on Secor Road in Toledo, Ohio, when she was pulled over by Ohio State
Highway Patrol trooper Brian Mull.
{¶ 3} Prior to initiating the stop, Mull observed appellant traveling at a “very
noticeable high rate of speed” visually estimated to be between 50 and 55 m.p.h. in a
40 m.p.h. zone. Upon activating his radar, Mull determined that appellant was traveling
at a speed of 59 m.p.h. Thereafter, Mull noticed appellant make an “abrupt stop” at a red
light. When the light turned green, Mull observed appellant quickly accelerate through
the intersection and he began to follow appellant.
{¶ 4} As Mull was observing appellant’s vehicle, he noticed that the left tires
traveled completely over the centerline by approximately one foot. Thereafter, Mull
noticed the right tires travel completely over the lane division line, at which point he
activated his lights and siren to initiate a traffic stop. At the time the stop was initiated,
Mull paced appellant and determined that she was traveling at a rate of speed “in the
upper 60s” in a 35 m.p.h. zone. Subsequently, Mull clocked appellant traveling at a
speed “in the fifties” via radar.
{¶ 5} During the course of the traffic stop, Mull detected the odor of alcohol
emanating from the passenger compartment of appellant’s vehicle. Consequently, Mull
asked appellant to exit the vehicle, and he proceeded to conduct a series of three sobriety
tests, all of which appellant failed. Thereafter, Mull administered a breathalyzer test,
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which revealed that appellant was operating her vehicle with a blood alcohol content of
.199 grams of alcohol per 210 liters of breath. As a result, Mull issued a citation charging
appellant with one count of operating a vehicle under the influence of alcohol or drugs in
violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, one count of
operating a vehicle under the influence of alcohol or drugs in violation of R.C.
4511.19(A)(1)(h), a misdemeanor of the first degree, one count of driving under
suspension in violation of R.C. 4510.11, a misdemeanor of the first degree, and one count
of driving in marked lanes in violation of R.C. 4511.33, a minor misdemeanor.
{¶ 6} On March 15, 2019, appellant appeared before the trial court and entered a
plea of not guilty to the aforementioned charges. Thereafter, the matter proceeded
through pretrial motion practice and discovery.
{¶ 7} On July 29, 2019, appellant filed a motion to suppress, in which she argued
that the traffic stop that gave rise to her citation was improper because a video of the stop
demonstrated that she was not speeding or traveling outside of the marked lanes as
articulated by the officer who initiated the stop. In its memorandum opposing appellant’s
motion to suppress, filed the same day as appellant’s motion, the state argued that the
traffic stop was justified because the officer witnessed appellant speeding and committing
a marked lanes violation prior to initiating the stop.
{¶ 8} On August 26, 2019, the matter proceeded to a hearing on appellant’s
motion to suppress. At the conclusion of the suppression hearing, the trial court denied
appellant’s motion to suppress based upon its finding that the traffic stop was supported
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by reasonable articulable suspicion that appellant had sped and committed a marked lanes
violation.
{¶ 9} The matter then immediately proceeded to a trial before the bench. As its
sole witness, the state called Mull to the stand, who testified regarding the sobriety tests
and the breathalyzer test that he conducted in this case. At the conclusion of the state’s
case in chief, appellant moved for an acquittal under Crim.R. 29, which was granted as to
the charge of driving under suspension, but denied as to the remaining charges.
{¶ 10} Thereafter, appellant took the stand, testifying that her failure of the
sobriety tests in this case were the result of Mull taking her prescription eyeglasses at the
beginning of the traffic stop. Further, appellant testified that the breathalyzer machine
that Mull used to administer the breathalyzer test broke into pieces while the test was
being administered.
{¶ 11} In response to appellant’s testimony, the state recalled Mull as a rebuttal
witness. Mull explained that the breathalyzer machine used in this case was functioning
properly on the date of the traffic stop. Mull observed that his pen broke into pieces
during the administration of the breathalyzer test and had to be reassembled.
{¶ 12} After the parties were finished with their presentation of evidence and
closing arguments, the trial court found appellant guilty of both counts of operating a
vehicle under the influence of alcohol or drugs, but not guilty of driving in marked lanes.
In its explanation for its verdict, the trial court indicated that it found appellant to be less
than credible. The trial court explained that appellant’s defense was inconsistent with the
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results of the breathalyzer test, which revealed that appellant was indeed operating her
vehicle while under the influence of alcohol.
{¶ 13} The court went on to merge the two counts of operating a vehicle under the
influence of alcohol or drugs. Ultimately, the trial court imposed a sentence of 180 days
in jail, 134 of which the court suspended. As to the remaining 46 days, the court ordered
appellant to serve ten days in jail and 36 days on electronic home monitoring. Further,
the trial court placed appellant on one year of probation, ordered her to pay costs, and
imposed a two-year license suspension. Thereafter, appellant filed her timely notice of
appeal.
B. Assignments of Error
{¶ 14} On appeal, appellant assigns the following assignments of error for our
review:
I. The assistance of counsel is ineffective when counsel raises
mitigation as a defense, when raising mitigation requires admissions to an
offense in an OVI.
II. The Defendant had evidence to undermine the validity of the
Breathalyzer she was given. However, trial counsel failed to introduce this
evidence during the suppression hearing and did not make an effort to
introduce further evidence in support during trial. This lack of action
harmed the Defendant by negatively affecting the outcome of trial and
making counsel’s assistance ineffective.
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{¶ 15} Because appellant’s assignments of error each raise the issue of the
effectiveness of trial counsel, we will address them simultaneously.
II. Analysis
{¶ 16} In appellant’s assignments of error, she argues that her trial counsel
provided ineffective assistance. To demonstrate ineffective assistance of counsel,
appellant must first show that trial counsel’s representation “fell below an objective
standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Because “effective assistance” may involve different
approaches or strategies, our scrutiny of trial counsel’s performance “must be highly
deferential” with a “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” State v. Bradley, 42 Ohio St. 3d 136, 142, 538
N.E.2d 373 (1989), quoting Strickland at 689. Should appellant demonstrate her trial
counsel’s performance was defective, appellant must also demonstrate that prejudice
resulted. Bradley at paragraph two of the syllabus.
{¶ 17} Here, appellant argues that her trial counsel rendered ineffective assistance
in two ways. First, appellant contends that trial counsel should not have allowed her to
testify at the suppression hearing as to mitigating reasons for her traffic stop. Second,
appellant asserts that trial counsel should have introduced evidence as to the broken
condition of the breathalyzer machine at the suppression hearing in order to undermine
the credibility of the breathalyzer test.
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{¶ 18} As to her first argument, appellant contends that “by offering testimony to
mitigate the reason for the observed behavior by the Trooper, Ms. Taylor admitted to the
behavior that led to the stop itself. In the context of a suppression hearing, this testimony
only served to harm Ms. Taylor by virtually guaranteeing the motion to suppress would
be denied.”
{¶ 19} During the suppression hearing held in this case, appellant provided the
following testimony to explain why she stopped abruptly at a traffic light prior to the
initiation of the traffic stop:
Q: April, you heard the officer’s testimony. That was the night of
February 23rd. Do you recall that evening?
A: Yes.
Q: And could you see the video as well?
A: Yes. I’ve watched it several times.
Q: And was that you driving the vehicle southbound on Central
Avenue – I’m sorry. Or Secor Road?
A: Yes.
Q: Okay, April. And is there anything about your vehicle – did you
see the rocking portion of the vehicle?
A: Yes.
Q: And is there anything, about your vehicle, that would make it
behave in that manner?
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A: This was my maybe fourth time driving this vehicle. My
previous vehicle was taken, from me, for the previous pullover situation. I
just got my license back, and did this vehicle, because I had no other
choice. This vehicle has issues with the shocks. The rear shocks and the
front shocks. I could only afford to get one done at a time. So the back
was more important to get done. So I did the back shocks. And the vehicle
also has an issue with the wheel alignment, which I couldn’t get fixed until
after I got the first set in the front shocks done. Otherwise, it would be
pointless to get the alignment done. So I have an alignment issue with the
vehicle. And it’s also an eight-cylinder engine vehicle. I’m used to driving
four or a six-cylinder engine. So that engine is very big compared to what
I’m used to driving. But I have no choice.
Q: So does it stop like that frequently?
A: All the time. Even as driving, any bump, any piece in the street,
it bounces up and down. Any go/stop position it bounces all the time.
Appellant went on to testify as to why she weaved once she passed through the
intersection and continued on Secor Road, explaining that she was attempting to avoid
potholes and had spilled a drink inside her vehicle.
{¶ 20} After reviewing the entire record, including the foregoing testimony, we do
not find that trial counsel’s decision to call appellant to testify at the suppression hearing
rises to the level of deficient performance. “The decision whether to call a defendant as a
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witness falls within the purview of trial tactics,” State v. Adkins, 144 Ohio App. 3d 633,
646, 761 N.E.2d 94 (12th Dist.2001), and “[d]ebatable trial tactics generally do not
constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St. 3d 72, 85, 656
N.E.2d 643 (1995).
{¶ 21} Relevant to the issue raised by appellant, the Supreme Court of Ohio has
stated that “[d]efendants have ‘a fundamental and a personal right’ to testify, which is
‘waivable only by an accused.’” State v. Thompson, 141 Ohio St. 3d 254, 2014-Ohio-
4751, 23 N.E.3d 1096, ¶ 257, quoting State v. Bey, 85 Ohio St. 3d 487, 499, 709 N.E.2d
484 (1999). Further, in the context of a similar ineffective assistance argument, we have
held that “the decision whether to take the stand ultimately rests with the defendant.”
State v. Driftmyer, 6th Dist. Ottawa No. OT-16-021, 2017-Ohio-4016, ¶ 23, citing State
v. Turner, 6th Dist. Wood No. WD-11-025, 2012-Ohio-3863, ¶ 45.
{¶ 22} Moreover, we find that the testimony provided by appellant at the
suppression hearing did not influence the trial court’s decision to deny the motion to
suppress, and thus did not prejudice appellant. Notably, the trial court explained its
reasoning behind denying appellant’s motion to suppress on the record, as follows:
Yeah. I saw the lights rock. Whether I saw a Marked Lanes
violation or not, I’m not sure. To be honest with you, I’m not holding
either of those two things against you. When I drive down that narrow
[road], I commit a Marked Lanes violation, okay? So short of you being –
weaving all over the road, that to me isn’t the basis for the stop here. You
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jerking forward and coming back, whether it was because of your shocks or
whether it was because you were traveling a hundred miles an hour, I’m not
taking that into consideration as to the stop. I’m purely looking at the
speed. * * * So every explanation that you gave for why these things
happened, you still can’t get around, in my opinion, the speed. And I have
to look at this in the totality of the circumstances. And like I said, even if I
throw out the Marked Lanes, and throw out the abrupt stop, I don’t see how
you get [past] the speed. So at this point, I’m going to deny the Motion to
Suppress.
{¶ 23} In light of the foregoing, it is clear that the trial court found that Mull had
reasonable suspicion to initiate a traffic stop in this case based upon appellant’s speeding
infraction, not the rocking of appellant’s vehicle or her alleged marked lanes violation.
Consequently, the outcome of the proceedings, namely the denial of appellant’s motion to
suppress, would have remained the same even without appellant’s mitigation testimony.
{¶ 24} Next, we turn to appellant’s second argument concerning trial counsel’s
failure to introduce evidence of the condition of the breathalyzer machine at the
suppression hearing. As noted in our recitation of the facts above, appellant’s argument
in support of her motion to suppress was limited to the claim that Mull did not have a
reasonable, articulable suspicion of criminal activity to warrant his initiation of the traffic
stop that gave rise to appellant’s citation. Clearly, the breathalyzer test, which was
conducted after the traffic stop was well underway, did not contribute to Mull’s decision
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to stop appellant’s vehicle. Thus, evidence that might have undermined the accuracy of
the results of the breathalyzer test would have been irrelevant (and therefore
inadmissible) to the trial court’s examination of appellant’s argument challenging
whether the traffic stop was justified by reasonable suspicion. Upon due consideration of
appellant’s argument, we find that trial counsel properly limited the presentation of
evidence to the issues raised in appellant’s motion to suppress.
{¶ 25} In short, appellant has failed to demonstrate that trial counsel’s conduct at
the suppression hearing was deficient or prejudicial. Therefore, we find that appellant
has not demonstrated that her trial counsel rendered ineffective assistance of counsel.
Accordingly, appellant’s assignments of error are not well-taken.
III. Conclusion
{¶ 26} In light of the foregoing, the judgment of the Toledo Municipal Court is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
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Toledo v. Taylor
C.A. Nos. L-19-1205
L-19-1206
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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