State v. Womack , 2021 Ohio 98 ( 2021 )

[Cite as State v. Womack, 2021-Ohio-98.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-20-12
v.
CHRISTINA M. WOMACK, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2019-CR-0239
Judgment Affirmed
Date of Decision: January 19, 2021
APPEARANCES:
Nick A. Catania for Appellant
Benjamin R. Elder for Appellee
Case No. 2-20-12
ZIMMERMAN, J.
{¶1} Defendant-appellant, Christina M. Womack (“Womack”), appeals the
March 20, 2020 judgment entry of sentence of the Auglaize County Court of
Common Pleas. We affirm.
{¶2} The case stems from the October 10, 2019 traffic stop of the vehicle
operated by Womack by Officer Joseph Welker (“Officer Welker”) of the
Wapakoneta Police Department after Officer Welker observed Womack fail to
properly signal her intention to turn as required by R.C. 4511.39. At the time of the
stop, there were two passengers in the vehicle with Womack—Peter Lotzer
(“Lotzer”), who was riding in the front passenger seat, and William Pitney
(“Pitney”), who was a passenger in the rear of the vehicle. During the stop, Officer
Welker became suspicious of criminal activity—namely drug activity—based on
his interactions with Womack, Lotzer, and Pitney. Thus, Officer Welker conducted
an open-air sniff with his K-9 partner (“Rico”) around Womack’s vehicle, while
another law enforcement officer—Officer Jared Clark (“Officer Clark”) of the
Wapakoneta Police Department—assisted him with writing the warning for the
traffic violation. Rico alerted to the presence of contraband in Womack’s vehicle,
and a subsequent search of the vehicle revealed drugs.
{¶3} On October 24, 2019, the Auglaize County Court of Common Pleas
indicted Womack on a single count of possession of drugs in violation of R.C.
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2925.11(A), (C)(1)(c). (Doc. No. 1). Womack appeared for arraignment on
October 25, 2019 and entered a plea of not guilty. (Doc. No. 10).
{¶4} The case proceeded to a jury trial on January 8-9, 2020, during which
the jury found Womack guilty of the charge set forth in the indictment. (Doc. Nos.
50, 51). On March 20, 2020, the trial court sentenced Womack to a minimum term
of six years in prison to a maximum term of nine years in prison. (Doc. No. 76).
{¶5} Womack filed a motion for leave to file a delayed appeal with this court
on May 27, 2020, which we granted on June 12, 2020. (See Doc. Nos. 91, 106).
She raises one assignment of error for our review
Assignment of Error
The Attorney Retained to Represent the Defendant-Appellant in
This Case Did Not Provide Effective Assistance of Counsel.
{¶6} In her sole assignment of error, Womack argues that the that her trial
counsel was ineffective for failing to file a motion to suppress evidence obtained
from the traffic stop in this case. Specifically, Womack contends that a motion to
suppress evidence would have had a reasonable probability of success because (1)
“there was not reasonable articulable suspicion for the stop”; (2) “the officer
detained the car and Ms. Womack longer than necessary to accomplish the purpose
of the stop in order to run a drug dog”; and (3) “the reliability of the drug dog should
have been called into question.” (Appellant’s Brief at 5).
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Standard of Review
{¶7} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675
(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶8} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
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Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
Analysis
{¶9} “‘When a claim of ineffective assistance of counsel is based on
counsel’s failure to file a particular motion, a defendant must show that the motion
had a reasonable probability of success.’” State v. Dahms, 3d Dist. Seneca No. 13-
16-16, 2017-Ohio-4221, ¶ 101, quoting State v. Ferguson, 10th Dist. Franklin No.
16AP-307, 2016-Ohio-8537, ¶ 11. Here, because Womack’s ineffective-assistance-
of-counsel claim centers on her trial counsel’s failure to file a motion to suppress
evidence, an analysis of Womack’s assignment of error necessitates not only a
review of the law pertaining to suppression but the specific reasons that the Womack
contends her constitutional rights were violated. See id.{¶10} The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and
seizures, and any evidence that is obtained during an unlawful search or seizure will
be excluded from being used against the defendant. State v. Jenkins, 3d Dist. Union
No. 14-10-10, 2010-Ohio-5943, ¶ 9; State v. Steinbrunner, 3d Dist. Auglaize No. 2-
11-27, 2012-Ohio-2358, ¶ 12.
Neither the Fourth Amendment to the United States Constitution nor
Section 14, Article I of the Ohio Constitution explicitly provides that
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violations of its provisions against unlawful searches and seizures will
result in the suppression of evidence obtained as a result of such
violation, but the United States Supreme Court has held that the
exclusion of evidence is an essential part of the Fourth Amendment.
Jenkins at ¶ 9, citing Mapp v. Ohio, 367 U.S. 643, 649, 81 S.Ct. 1684 (1961) and
Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341 (1914).
{¶11} “A traffic stop constitutes a seizure and implicates the protections of
the Fourth Amendment” but “‘is constitutionally valid if an officer has a reasonable
and articulable suspicion that a motorist has committed, is committing, or is about
to commit a crime.’” State v. Dillehay, 3d Dist. Shelby No. 17-12-07,
2013-Ohio-327, ¶ 13, citing State v. Johnson, 3d Dist. Hancock No. 5-07-43, 2008-
Ohio-1147, ¶ 16; State v. Aldridge, 3d Dist. Marion No. 9-13-54, 2014-Ohio-4537,
¶ 10, quoting State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 7. “The
Supreme Court of Ohio has defined ‘reasonable articulable suspicion’ as ‘specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the intrusion [upon an individual’s freedom of movement].’”
State v. Shaffer, 3d Dist. Paulding No. 11-13-02, 2013-Ohio-3581, ¶ 18, quoting
State v. Bobo, 37 Ohio St.3d 177, 178 (1988). “In forming reasonable articulable
suspicion, law enforcement officers may ‘draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that “might well elude an untrained person.”’”
Jenkins at ¶ 12, quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744-6-
Case No. 2-20-12
(2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690(1981). “In determining whether reasonable articulable suspicion exists, a
reviewing court must look to the totality of the circumstances.” Steinbrunner at ¶
14, citing State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). “A police officer’s
testimony alone is sufficient to establish reasonable articulable suspicion for a stop.”
State v. McClellan, 3d Dist. Allen No. 1-09-21, 2010-Ohio-314, ¶ 38, citing State v.
Claiborne, 2d Dist. Montgomery No. 19060, 2002-Ohio-2696.
{¶12} In addition to a reasonable and articulable suspicion of criminal
activity, “[p]robable cause is certainly a complete justification for a traffic stop,”
but it is not required to justify a traffic stop. Mays at ¶ 23. “Probable cause” is a
stricter standard than and subsumes “reasonable and articulable suspicion.” Id.,citing State v. Evans, 67 Ohio St.3d 405, 411 (1993). Accordingly, “an officer who
witnesses a traffic violation possesses probable cause, and a reasonable articulable
suspicion, to conduct a traffic stop.” (Emphasis added.) State v. Haas, 3d Dist.
Henry No. 7-10-15, 2012-Ohio-2362, ¶ 16, citing Arvizu at 273. See also Mays at
¶ 24.
{¶13} In this case, Officer Welker stopped Womack for violating R.C.
4511.39, which “‘requires that a turn signal be given continuously for at least one
hundred feet before turning.’” State v. Harpel, 3d Dist. Hardin No. 6-20-03, 2020-
Ohio-4513, ¶ 20, quoting State v. Wade, 3d Dist. Seneca No. 13-16-23, 2017-Ohio-
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1319, ¶ 9, citing R.C. 4511.39(A). However, on appeal, Womack contends that
she “did signal her turn and a Motion Hearing would have brought out testimony
from the Officer and video evidence which could have allowed the Trial Court to
find she did in fact signal early enough to avoid reasonable suspicion for a traffic
stop.” (Appellant’s Brief at 6).
{¶14} In our review, Womack fails to specify how a motion to suppress
evidence would have had a reasonable probability of success. That is, Womack fails
to specify what evidence would have been produced at a suppression hearing which
would have contradicted Officer Welker’s trial testimony that he stopped Womack
for “failing to signal [her] intended turn in a significant manner” since “[t]he vehicle
was so close to the stop sign [that] it was within the yellow markings of where you
cannot park to for an intersection.” (Jan. 8-9, 2020 Tr., Vol. I, at 99).
{¶15} The record reveals that Officer Welker’s testimony established that,
even though Womack activated her turn signal before she turned, Womack failed to
signal her turn continuously for at least 100 feet before turning as required by R.C.
4511.39. See Harpel at ¶ 20. Thus, because Womack did not provide any evidence
to the contrary, we conclude that Officer Welker had probable cause to stop
Womack. Accordingly, we cannot conclude that a motion to suppress evidence
based on Officer Welker’s stop of Womack would have had a reasonable probability
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of success. Therefore, Womack’s trial counsel was not ineffective for failing to file
a motion to suppress evidence challenging Officer Welker’s basis for the stop.
{¶16} Womack further contends that a motion to suppress evidence would
have had a reasonable probability of success because Officer Welker “detained the
car and Ms. Womack longer than necessary to accomplish the purpose of the stop
in order to run a drug dog.” (Appellant’s Brief at 5). “It is well settled that the use
of a trained drug-detection dog during a lawful traffic stop generally does not trigger
Fourth Amendment protection.” State v. Green, 7th Dist. Mahoning No. 15 MA
0006, 2016-Ohio-4810, ¶ 14, citing Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct.
834 (2005). See also State v. Werder, 6th Dist. Fulton No. F-19-008, 2020-Ohio-
2865, ¶ 14 (“It is well-established that ‘[a] K-9 sniff is not a search within the
meaning of the Fourth Amendment.’”), quoting State v. Young, 6th Dist. Erie No.
E-13-011, 2015-Ohio-398, ¶ 29.
{¶17} “A drug-detection dog may sniff around the exterior of a defendant’s
vehicle during a lawful traffic stop in absence of a reasonable suspicion of drug-
related activity.” Green at ¶ 14, citing Caballes at 409. However, “‘a traffic stop
may not be extended in order to conduct a dog sniff, absent reasonable suspicion.’”
Id., quoting Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 1616-1617
(2015). That is,
the stop may not be prolonged beyond the time reasonably required to
complete the ‘mission’ of the stop, which includes issuing the ticket
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or warning and other ordinary inquiries incident to the traffic stop and
related to officer safety such as “checking the driver’s license,
determining whether there are outstanding warrants against the driver,
and inspecting the automobile’s registration and proof of insurance.”
Id. at ¶ 16, quoting Rodriguez at 1615. “‘[T]he critical question is not whether the
dog sniff occurs before or after the officer issues a ticket, but whether conducting
the sniff adds time to the stop.’” Id., quoting Rodriguez at 1616.
{¶18} Similar to her previous argument, Womack failed to meet her burden
of demonstrating how her argument would have had a reasonable probability of
success. In sum, Womack argues the stop could have been accomplished more
expeditiously than the time it took to effectuate the stop in this case since Officer
Welker’s “stated * * * objective or mission in the stop was to give a warning for a
violation of turn signal.” (Appellant’s Brief at 6). In other words, Womack failed
to demonstrate how her suppression argument would have had a reasonable
probability of success under the Rodriguez standard—that is, Womack failed to
offer any argument as to how Officer Welker unconstitutionally prolonged the
duration of the stop to permit Rico to conduct an open-air sniff.
{¶19} Nevertheless, in our review of the record, there is no evidence that a
motion to suppress evidence based on an argument that the traffic stop was
unconstitutionally prolonged would have had any reasonable probability of success.
That is, there is no evidence in the record to suggest that Womack’s “detention for
the traffic violation was of sufficient length to make it constitutionally dubious.”
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See State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-2204, ¶ 14 (“There simply is
no evidence to suggest that Batchili’s detention for the traffic violation was of
sufficient length to make it constitutionally dubious.”).
{¶20} At trial, Officer Welker identified State’s Exhibit 15 as a true and
accurate video recording from his body camera depicting the traffic stop of
Womack, which was subsequently played for the jury. (Jan. 8-9, 2020 Tr., Vol. I,
at 102); (State’s Ex. 15). The video recording from Officer Welker’s body camera
depicts Officer Welker stopping the vehicle operated by Womack; obtaining
Womack’s, Lotzer’s, and Pitney’s identifying information; and asking Womack to
step outside of the vehicle to speak with him while he verified their identities. From
the time that Officer Welker stopped the vehicle until the time that Womack exited
the vehicle, 2 minutes and 30 seconds elapsed.
{¶21} While confirming their identities, Officer Welker questioned Womack
as to her purpose for traveling to Wapakoneta—namely, her reason for traveling to
the residence at which Officer Welker initially observed her vehicle. This exchange
lasted approximately 6 minutes. Thereafter, the video depicts Officer Clark
assisting Officer Welker with writing the warning for the traffic violation, while
Officer Welker questions Pitney (for approximately 1 minute) as to his purpose for
traveling to the residence at which Officer Welker observed him exit and enter
Womack’s vehicle.
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{¶22} After asking Womack a few additional questions and having Lotzer
and Pitney exit the vehicle, Officer Welker conducted the open-air sniff around the
vehicle with Rico at approximately 10 minutes into the stop. During this time,
Officer Clark can be seen continuing to write the warning for the traffic violation at
9 minutes and 30 seconds into the stop. Indeed, Officer Clark testified that he
“completed it while Officer Welker was conducting his open-air sniff around the
vehicle.” (Jan. 8-9, 2020 Tr., Vol. I, at 154). Based on these facts, there is no
evidence that Womack’s detention was delayed so that the dog could conduct its
search. Compare Batchili at ¶ 13 (concluding that there was “no showing that the
detention was delayed so that the dog could conduct its search, and therefore, there
was no constitutional violation” based on the evidence in “[t]he record establish[ing]
that at the time the dog alerted, eight minutes and 56 seconds into the stop, Trooper
Arnold was still waiting for the results of the criminal-background check”).
{¶23} Nevertheless, even assuming without deciding that Womack’s
detention was unreasonably “prolonged by the request for a dog search, ‘the
detention of a stopped driver may continue beyond [the normal] time frame when
additional facts are encountered that give rise to a reasonable, articulable suspicion
of criminal activity beyond that which prompted the initial stop.’” Id. at ¶ 15,
quoting State v. Howard, 12th Dist. Preble No. CA2006-02-002, 2006-Ohio-5656,
¶ 16. “Moreover, ‘in order to delay a traffic stop for the purpose of conducting a K-
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9 drug “sniff,” the reasonable, articulable suspicion required must be of drug
activity.’” (Emphasis sic.) State v. Sealey, 11th Dist. Lake No. 2019-L-128, 2020-
Ohio-987, ¶ 7, quoting State v. Eggleston, 11th Dist. Trumbull No. 2014-T-0068,
2015-Ohio-958, ¶ 28.
{¶24} Here, considering the totality of the circumstances, Officer Welker had
a reasonable, articulable suspicion of drug activing necessary to prolong the traffic
stop for the purpose of conducting the open-air sniff with Rico. Compare State v.
Balanik, 11th Dist. No. 2015-L-112, 2016-Ohio-3511, ¶ 27 (concluding that law
enforcement had a reasonable, articulable suspicion of drug activing warranting the
extended traffic stop “based on the collective nervousness of the occupants of the
car [and] the inconsistent statements as to where the occupants were going that
night”); State v. Stephenson, 12th Dist. Warren No. CA2014-05-073, 2015-Ohio-
233, ¶ 24 (concluding that law enforcement “had reasonable, articulable suspicion
of drug-related activity to extend the duration of the traffic stop to investigate further
and call the canine unit” based, in part, on nervous behavior and because “[t]he men
gave inconsistent stories regarding the purpose of their trip”). Specifically, Officer
Welker observed Womack pick up Pitney from a known drug house in Wapakoneta
and received conflicting stories in response to his questions regarding their purpose
for being at that house. Furthermore, Officer Welker testified that Womack and
Lotzer not only acted nervous when they saw him pass by while they were parked
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outside the known drug house but also testified that Womack, Lotzer, and Pitney
acted nervous during his interactions with them during the traffic stop. (See Jan. 8-
9, 2020 Tr., Vol. I, at 96, 105-107). Indeed, Officer Welker testified that the totality
of his interactions with Womack, Lotzer, and Pitney raised his suspicions that
criminal activity was afoot.
{¶25} For these reasons, we conclude that Womack’s argument that a motion
to suppress evidence based on an argument that the traffic stop was
unconstitutionally prolonged would not have had any reasonable probability of
success. Therefore, Womack’s trial counsel was not ineffective for failing to file a
motion to suppress evidence alleging that she was unconstitutionally detained
longer than necessary to effectuate the purpose of the stop.
{¶26} Finally, Womack argues that her trial counsel was ineffective for
failing to file a motion to suppress evidence challenging “the reliability of the drug
dog.” (Appellant’s Brief at 6). Similar to her previous arguments, Womack failed
to meet her burden of demonstrating that a motion to suppress evidence challenging
Rico’s training and reliability would have had a reasonable probability of success.
Here, Womack asserts that, had her trial counsel filed a motion to suppress evidence,
he or she could have questioned Officer Welker as to his K-9 partner’s reliability
over the eight years that he has worked with the dog. That is not the standard. To
demonstrate that her trial counsel was ineffective, Womack must offer evidence to
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show that a motion to suppress evidence would have had a reasonable probability
of success based on an argument that Rico was unreliable, and Womack failed to
meet that threshold.
{¶27} “When a trained narcotics dog alerts to the odor of drugs from a
lawfully detained vehicle, probable cause to search a vehicle and its contents exists.”
State v. Fritz, 12th Dist. Clermont No. CA2019-12-094, 2020-Ohio-5231, ¶ 29,
citing State v. Blatchford, 12th Dist. Preble No. CA2015-12-023, 2016-Ohio-8456,
¶ 38 and State v. Cruz, 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶
18. “Regarding the reliability of a canine search, the United States Supreme Court
has held that ‘[i]f a bona fide organization has certified a dog after testing his
reliability in a controlled setting, a court can presume (subject to any conflicting
evidence offered) that the dog’s alert provides probable cause to search.’” Id.,quoting Florida v. Harris, 568 U.S. 237, 246-247, 113 S.Ct. 1050 (2013).
{¶28} Here, Officer Welker testified that he and Rico are a certified K-9 unit,
and that they have undergone extensive training, certification, and recertification
through the State of Ohio. (See Jan. 8-9, 2020, Tr., Vol. I, at 90-91). Other than
innuendo, Womack offers no conflicting evidence putting Rico’s training and
reliability in doubt despite having Rico’s “deployment and use history.”
(Appellee’s Brief at 9). Without evidence to the contrary, we can presume that
Rico’s positive alert provided Officer Welker probable cause to believe that drugs
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would be found in Womack’s vehicle and, as such, the subsequent search of the
vehicle was lawful. See Fritz at ¶ 31. Accordingly, we cannot conclude that a
motion to suppress evidence based on an argument challenging Rico’s training and
reliability would have had a reasonable probability of success. Thus, Womack’s
trial counsel was not ineffective for failing to file a motion to suppress evidence
challenging Rico’s training and reliability.
{¶29} Based on the foregoing, we conclude that Womack’s trial counsel was
not ineffective and, therefore, her assignment of error is overruled.
{¶30} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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