State v. Harlow , 2014 Ohio 864 ( 2014 )

[Cite as State v. Harlow, 2014-Ohio-864.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, : Case No. 13CA29
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
JESSICA R. HARLOW, :
: RELEASED: 2/26/14
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Mary Elaine Hall, Cleveland, Ohio, for appellant.
Paul G. Betram III, Marietta City Law Director, and Catherine Ingram Reynolds, Marietta
City Assistant Law Director, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} After being convicted of operating a vehicle under the influence upon her
plea of no contest, Jessica Harlow appeals the denial of her motion to suppress. We
construe both her first two assignments of error as challenging the trial court’s factual
basis for finding that the stop of her vehicle satisfies constitutional standards.
Characterizing her first and second assignments of error respectively as challenges to
the sufficiency and weight of the evidence, she argues the state failed to present
evidence to support a finding that the trooper had either probable cause or a reasonable
articulable suspicion for stopping her car. Specifically, she contends the court should
not have admitted and relied upon a DVD, which captured her erratic driving. However,
because defense counsel stipulated to its admission, Harlow has forfeited any argument
on appeal that the DVD depicting her driving was inadmissible. And to the extent that
she argues that the trooper unlawfully followed her car before stopping her, she cites no
Washington App. No. 13CA29 2
law to support this assertion and we are unaware of any basis for such a proposition. In
fact, the trooper's act of following her car on public roadway does not implicate any
Fourth Amendment protection. So we overrule her first two assignments of error.
{¶2} In her third assignment of error Harlow asserts that her trial counsel was
ineffective for stipulating to the DVD’s admission at the suppression hearing and failing
to brief the issue. However, Harlow has failed to overcome the presumption that
counsel’s stipulation was a sound trial strategy, as the record shows that the defense
believed the DVD contradicted the trooper’s testimony. Thus, we cannot say that
counsel’s performance was deficient.
{¶3} Finally, in her fourth assignment of error Harlow argues that the trial court
abused its discretion by denying her limited driving privileges. However, the record
shows that Harlow’s license was suspended prior to her conviction due to an
administrative license suspension (ALS). Then after her conviction her ALS was
terminated and a judicial suspension took its place as part of her sentence. Because
Harlow only petitioned the court for limited driving privileges before her conviction under
the ALS, her argument concerning her suspension under the conviction is not properly
before us.
I. FACTS
{¶4} In the early morning hours, Trooper Stephen Rogers of the Ohio State
Highway Patrol observed Harlow’s vehicle turn onto State Route 83, in Washington
County. After Trooper Rogers pulled behind the vehicle and began to follow it, he
observed the vehicle cross over the white edge line on the road several times. At one
point, the vehicle actually drifted off the road and came in contact with the gravel. When
Washington App. No. 13CA29 3
Trooper Rogers initiated a traffic stop, he noticed that Harlow’s eyes were red and
glassy, and there was an odor of alcohol coming from inside the automobile. Harlow
denied drinking but following a series of field sobriety tests, the trooper arrested Harlow
and charged her with OVI and failure to drive in marked lanes. Thereafter, Harlow
admitted to having three drinks, but refused to take a breath test.
{¶5} After pleading not guilty Harlow filed a motion to suppress evidence
claiming that Trooper Rogers lacked probable cause to stop her vehicle. Trooper
Rogers testified at a hearing on the motion and the parties also stipulated to the
admission of a DVD recording of the traffic stop from the trooper’s dashboard camera.
The trial court found the trooper had reasonable suspicion to stop Harlow’s vehicle
and denied the motion.
{¶6} After Harlow entered a plea of no contest to the OVI charge, the trial court
found her guilty. The court imposed a sentence of a one year license suspension, in
addition to suspended jail time, fines and costs. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶7} Harlow raises four assignments of error for our review:
1. THE TRIAL COURT’S LEGAL CONCLUSIONS THAT THE OHIO
STATE PATROLMAN HAD EITHER PROBABLE CAUSE OR
REASONABLE SUSPICION OR OBSERVED THE COMMISSION OF A
MINOR TRAFFIC VIOLATION ARE NOT SUPPORTED BY THE
SUFFICIENCY OF THE EVIDENCE (1) PATROLMAN DID NOT
OBSERVE THE DEFENDANT-APPELLANT COMMIT ANY OFFENSE
UNTIL AFTER HE DECIDED TO TURN ONTO STATE ROUTE 83 AND
FOLLOW HER IN HOPE OF DISCOVERING A FUTURE CRIME; (2) THE
ASSISTANT LAW DIRECTOR DID NOT PRESENT ANY EXPERT
TESTIMONY TO SUBSTANTIATE THE ACCURACY OF THE DVD –
OTHER THAN HER OWN CONCLUSIONS THAT THE DEFENDANT-
APPELLANT VIOLTATED MARKED LANES, LEFT OF CENTER & EDGE
LINE VIOLATIONS.
Washington App. No. 13CA29 4
2.) THE TRIAL COURT’S LEGAL CONCLUSIONS THAT THE OHIO
STATE PATROLMAN HAD EITHER PROBABLE CAUSE OR
REASONABLE SUSPICION OR OBSERVED THE COMMISSION OF A
MINOR TRAFFIC VIOLATION ARE NOT SUPPROTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE (1) PATROLMAN DID NOT
OBSERVE THE DEFENDANT-APPELLANT COMMIT ANY OFFENSE
UNTIL AFTER HE DECIDED TO TURN ONTO STATE ROUTE 83 AND
FOLLOW HER IN HOPE OF DISCOVERING A FUTURE CRIME; (2) THE
ASSISTANT LAW DIRECTOR DID NOT PRESENT ANY EXPERT
TESTIMONY TO SUBSTANTIATE THE ACCURACY OF THE DVD –
OTHER THAN HER OWN CONCLUSIONS THAT THE DEFENDANT-
APPELLANT VIOLTATED MARKED LANES, LEFT OF CENTER & EDGE
LINE VIOLATIONS.
3.) THE DEFENDANT-APPELLANT’S PUBLIC DEFENDER IN THE
TRIAL COURT BELOW RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN SHE (1) FAILED TO BRIEF THE ISSUE OF
ADMISSIBILITY OF THE DVD WHEN GIVEN THE OPPORTUNITY BY
THE COURT AND (2) STIPULATED TO THE ADMISSIBILITY OF THE
DVD WITHOUT PLACING SPECIFIC EVIDENTIARY OBJECTIONS ON
THE RECORD.
4.) THE TRIAL COURT BELOW ABUSED ITS DISCRETION WHEN IT
FAILED TO GRANT THE DEFENDANT-APPELLANT’S PETITION FOR
[LIMITED] DRIVING PRIVILEGES PURSUANT TO R.C. 4510.021.
III. LAW AND ANALYSIS
A. Harlow’s Motion to Suppress
{¶8} On their face, Harlow’s first two assignments of error challenge the trial
court’s denial of her motion to suppress evidence. Appellate review of a motion to
suppress involves a mixed question of law and fact. State v. Roberts, 110 Ohio St.3d
71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. When considering a motion to suppress,
the trial court assumes the role of trier of fact and therefore is in the best position to
resolve factual questions and evaluate witness credibility. Id. As a result, appellate
courts “‘must accept the trial court’s findings of fact if they are supported by competent,
credible evidence.’” Id., quoting State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583Washington App. No. 13CA29 5
(1982). Accepting these facts as true, the appellate court must then independently
decide whether the facts of the case satisfy the applicable legal standard. Roberts at ¶
100.
{¶9} Harlow’s first two assignments of error are confusing and difficult to
construe because each assigned error is inconsistent with its respective argument and
the relief requested. In her argument under her first assignment of error, Harlow argues
“even though the public defender stipulated to the admission of the DVD, its admission
alone, without laying a proper foundation and without authentication under Evid.R. 901,
et seq. and Evid.R. 1001, et seq. the DVD is still insufficient under the totality of the
circumstances, for the trier of fact (the trial judge) to conclude the DVD was adequate to
accept her ‘no contest plea’ to OVI based upon the traffic stop.” She contends that we
must find that “(1) a rational trier of fact could conclude that the DVD did not contain all
the essential elements of offense beyond a reasonable doubt; and (2) the state’s
evidence, even if believed, does not support the ‘no contest plea’ to the OVI.” In the
argument under her second assignment of error she also requests that her conviction
be reversed under a manifest weight of the evidence standard because the “court below
clearly lost its way “ as indicated by the fact “it had to review the DVD five or six times.”
{¶10} This approach is confusing at best. Harlow’s first two assignments of error
challenge the trial court’s denial of her motion to suppress, not her conviction. Appellate
courts review assignments of error-we sustain or overrule only assignments of error and
not mere arguments. See State v. Gwinn, 196 Ohio App.3d 296, 2011-Ohio-5457, 963
N.E.2d 212, ¶ 26 (4th Dist.); Dunina v. Stemple, 2nd Dist. Miami No. 2007 CA 9, 2007-
Ohio-4719, ¶ 4. Accordingly, we will not address the arguments that challenge Harlow's
Washington App. No. 13CA29 6
conviction because she did not assign them as error. See Coffman v. Mansfield Corr.
Inst., 10th Dist. Franklin No. 09AP-447, 2009-Ohio-5859, ¶ 18.
{¶11} At the hearing on the motion, the state was not required to prove all the
essential elements of the charged offense beyond a reasonable doubt. Rather, the trial
court had only to decide whether the stop of her vehicle was lawful as challenged in her
motion. Her argument challenging the admission of the DVD at the suppression hearing
is misplaced because Harlow’s trial counsel stipulated to the DVD’s admissibility, i.e.
that it accurately represented what the trooper saw on the night in question. By
stipulating to its admissibility and content, Harlow has forfeited any argument on appeal
that the DVD was inadmissible. See State v. Keck, 127 Ohio St.3d 550, 2013-Ohio-
5160, 1 N.E.2d 403, ¶ 17 (holding that defense counsel’s stipulation to the admissibility
and content of a scientific report waived any argument that the report was inadmissible
and violated defendant’s Sixth Amendment right to confrontation); Hileman v. Kramer,
2nd Dist. Montgomery No. 15066, 1995 WL 765959, *8 (Dec. 29, 1995) (holding a
defendant “may not stipulate to the admissibility of certain records at trial and then
argue on appeal that those same records were admitted erroneously”). Her argument
also lacks merit because “the Rules of Evidence do not apply to suppression hearings.”
State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17.
{¶12} Harlow further claims that the trooper “unlawfully” followed her car “in the
hope of discovering a future crime,” but cites no law to support this vague assertion. In
fact, the law is clear that mere surveillance in public places does not implicate the
protection of the Fourth Amendment’s prohibition against unreasonable searches and
seizures. See Katz, Ohio Arrest Search and Seizure, Sections 14:4-14:5 (2013).
Washington App. No. 13CA29 7
{¶13} The only other contention Harlow advances related to the suppression
hearing is that “the trial court below clearly lost its way because it had to review the
DVD five or six times; the trial court was confused about what it saw.” This argument is
unsupported by legal authority and amounts to mere supposition. The fact that the
court reviewed the DVD multiple times would just as easily support a conclusion the
court took the time to get it right.
{¶14} Thus the trial court was justified in relying upon the DVD and the trooper's
testimony to conclude the trooper had a reasonable articulable suspicion (and probable
cause) to believe Harlow had failed to drive within the marked lanes. See State v.
Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 16, 24. As a result,
the stop satisfied the Fourth Amendment. We overrule Harlow’s first and second
assignments of error.
B. Ineffective Assistance of Counsel
{¶15} In her third assignment of error, Harlow argues that her trial counsel was
ineffective by stipulating to the DVD’s admission and failing to brief the issue.
{¶16} To prevail on an ineffective assistance of counsel claim, the appellant
must show 1.) counsel’s performance was deficient and 2.) the deficient performance
prejudiced the defense so as to deprive the accused of a fair trial. State v. Drummond,
111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish
deficient performance, an appellant must show that counsel’s performance fell below an
objective level of reasonable representation. State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. To establish prejudice, an appellant must show
Washington App. No. 13CA29 8
a reasonable probability exists that, but for the alleged errors, the result of the
proceeding would have been different. Id. “A defendant’s failure to establish one prong
of the Strickland test negates a court’s need to consider the other.” State v. Madrigal, 87
Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶17} In reviewing the claim of ineffective assistance, we are admonished to
indulge a “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.’” Strickland at 689.
{¶18} Here, Harlow has failed to satisfy either prong of the Strickland test. She
has not shown defense counsel’s performance fell below an objective level of
reasonable representation. To the contrary, the record supports the conclusion that
counsel’s stipulation was part of her strategy as she believed the DVD contradicted the
trooper’s testimony. At the suppression hearing, defense counsel argued that after
watching the DVD:
I don’t see it. I don’t see [Harlow] going over the fog line. I don’t see her
running off the road. I do see her kicking up gravel and it appears to
happen right around that Waterford Tank Plant which there’s dirt all over
the road. I just don’t see any violations. [Harlow] puts on her blinker. She
pulls over appropriately. I don’t believe there was any reasonable
suspicion or probable cause for the stop.
Although Harlow contends “there was a reasonable probability that if her public
defender had briefed the issue of admissibility of the DVD and specific evidentiary
objections to it, the results of the Suppression Hearing would have had a different
outcome for her,” she fails to offer any reason why the DVD was inadmissible or
specify any basis upon which counsel may have objected. Nevertheless, there is
Washington App. No. 13CA29 9
nothing in the record to suggest that the DVD did not accurately reflect the events on
the morning in question. Because it is well established that decisions regarding
stipulations primarily involve trial strategy, we cannot say that counsel’s stipulation
resulted in a deficient performance. See State v. Rippy, 10th Dist. Franklin No. 08AP-
248, 2008-Ohio-6680, ¶ 16.
{¶19} Harlow has also failed to show that she was prejudiced by the DVD’s
admission. Trooper Rogers testified at the suppression hearing about Harlow’s driving
on the night in question and the events recorded on the DVD. He testified that he
observed her vehicle cross over the white edge line “several times” and on one
occasion actually saw it come in contact with the gravel on the side of the road. Thus,
even without the DVD Harlow cannot show that the result of the hearing would have
been different. In fact, without the DVD the court would have had little potential for
finding the trooper’s testimony unworthy of belief.
{¶20} We also find it confusing that Harlow asserts in her reply brief that her
public defender rendered ineffective assistance of counsel because “[b]ut for her
lawyer’s failure to provide expert testimony to refute the results of the breathalyzer test,
regarding the weight to be given this evidence, she would have been found innocent.”
Even if we overlook the fact that an appellant may not use a reply brief to raise new
assignments of error or issues, Blair v. Cincinnati Ins. Co., 163 Ohio App.3d 81, 2005-
Ohio-4323, 836 N.E.2d 607, ¶ 6 (4th Dist.), Harlow refused to submit to a breathalyzer
test and this argument is inconsistent with the facts of the case. Therefore, we overrule
Harlow’s third assignment of error.
C. Driving Privileges
Washington App. No. 13CA29 10
{¶21} Finally in her fourth assignment of error Harlow contends that the trial
court abused its discretion by denying her limited driving privileges. On the date of her
arrest Trooper Rogers placed Harlow under an ALS as a result of her refusal to submit
to a breathalyzer test. “An ALS is a civil proceeding separate from any criminal
offense.” State v. McPhillamy, 6th Dist. Erie No. E–11–071, 2012-Ohio-3612, ¶ 8.
Because “the administrative license suspension is effective at the time of the arrest” it
“operates independently of any penalties resulting from the criminal charge.” State v.
Wisby, 1st Dist. Hamilton Nos. C-020758, C-020759, 2003-Ohio-5834, ¶ 15. “Both an
ALS and a criminal prosecution may result from driving under the influence of drugs or
alcohol and refusing to take a chemical test.” State v. Hoover, 123 Ohio St.3d 418,
2009-Ohio-4993, 916 N.E.2d 1056, ¶ 25. “After a DUI conviction, however, the ALS
terminates, and the license suspension becomes part of the DUI sentence.” Id. This is
also reflected in R.C. 4511.191(B)(2), which states:
The registrar shall terminate a suspension of the driver’s or commercial
driver's license or permit of a resident * * * imposed pursuant to division
(B)(1) of this section upon receipt of notice * * * that the person has been
convicted after entering a plea of no contest to, operating a vehicle in
violation of section 4511.19 of the Revised Code * * * if the offense for
which the conviction is had or the plea is entered arose from the same
incident that led to the suspension or denial.
{¶22} Although in her “STATEMENT OF THE CASE,” Harlow contends that she
filed a petition for driving privileges after the court imposed sentence, the record actually
shows that she only filed motions for driving privileges prior to pleading no contest. The
trial court denied both petitions in separate entries captioned “PRETRIAL DRIVING
RIGHTS.” The trial court’s judgment entry for Harlow’s OVI conviction, from which she
appeals, sentences her to “1year Suspension of all the Defendant’s Ohio driving rights
Washington App. No. 13CA29 11
and privileges: Any occupational driving privileges granted under the ALS are
terminated.”
{¶23} Thus, Harlow’s ALS terminated when she was convicted of OVI, as did
any privileges. And because Harlow did not petition the court for driving privileges after
her conviction, her argument concerning her suspension for her conviction is not
properly before the court. We reject her fourth assignment of error.
IV. CONCLUSION
{¶24} In conclusion, we overrule Harlow’s four assignments of error and affirm
the judgment of the trial court.
JUDGMENT AFFIRMED.
Washington App. No. 13CA29 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta
Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.