State v. Shoaf , 2022 Ohio 3605 ( 2022 )

[Cite as State v. Shoaf, 2022-Ohio-3605.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-21-21
v.
ANNA MAE SHOAF, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-21-22
v.
ANNA MAE SHOAF, OPINION
DEFENDANT-APPELLANT.
Appeals from Findlay Municipal Court
Trial Court Nos. 20TRC04154 and 20CRB01177
Judgments Affirmed
Date of Decision: October 11, 2022
APPEARANCES:
Adam H. Houser for Appellant
Elliott T. Worth for Appellee
Case Nos. 5-21-21, 5-21-22
SHAW, J.
{¶1} In this consolidated appeal, defendant-appellant, Anna M. Shoaf
(“Shoaf”), appeals from her convictions in the Findlay Municipal Court.
Facts and Procedural History
{¶2} On August 23, 2020, Shoaf was ticketed for operating a vehicle while
under the influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a), a first-
degree misdemeanor, leaving the scene of an accident (hit-skip) in violation of R.C.
4549.02, a first-degree misdemeanor, and driving between marked lanes in violation
of R.C. 4511.33, a minor misdemeanor. The traffic ticket complaints were filed in
Case No. 20TRC04154 (Hancock App. No. 5-21-21). Case No. 20CRB01177
(Hancock App. No. 5-21-22) concerns a complaint charging Shoaf with
endangering children in violation of R.C. 2919.22(C)(1), a first-degree
misdemeanor. The charges arose from an alleged car accident occurring on
Interstate 75. Shoaf’s vehicle allegedly side-swiped another vehicle, but did not
stop.
{¶3} Shoaf pled not guilty to the charges. Prior to trial, Shoaf filed the same
motion to suppress evidence in each case. A suppression hearing proceeded in
regard to the legality of the stop of her vehicle. At the conclusion of the testimony,
the trial court denied the motions, finding reasonable, articulable suspicion more
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than sufficient to justify the stop of Shoaf’s vehicle to investigate the alleged hit-
skip accident.
{¶4} The cases proceeded to a one-day jury trial. At the conclusion of the
trial, Shoaf was found guilty by the jury on all charges, except that Shoaf’s
determination of guilt of the marked lane violation was by the trial court.
{¶5} Following a sentencing hearing, the trial court sentenced Shoaf, inter
alia, to 90 days in jail, with all days suspended, for the leaving the scene of an
accident conviction; 180 days in jail, with 110 days suspended and 5 days’ credit
for successful completion of a driver intervention program, plus 60 days’ credit for
successful post-sentence home arrest, for the OVI conviction; and 90 days in jail,
with 85 days suspended, for the endangering children conviction, to be served
consecutively. The trial court also fined Shoaf for each offense of which she was
convicted, plus costs. Additionally, the trial court placed Shoaf on probation for a
period of two years in each case, with reconsideration after one-year.
{¶6} Shoaf now appeals, raising the following assignments of error for our
review.
ASSIGNMENT OF ERROR NO. 1
IT WAS AGAINST MANIFEST WEIGHT OF EVIDENCE FOR
THE TRIAL COURT TO DEN[Y] APPELLANT’S MOTION
TO SUPPRESS.
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ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT’S DECISION WAS AGAINST THE
MANIFEST WEIGHT OF EVIDENCE.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT MADE REVERSABLE [SIC] ERROR
WHEN IT DENIED APPELLANT’S MOTION FOR A
MISTRIAL.
ASSIGNMENT OF ERROR NO. 4
THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL AT THE TRIAL LEVEL.
First Assignment of Error
{¶7} In her first assignment of error, Shoaf challenges the trial court’s ruling
on her motion to suppress contending that it was against the manifest weight of the
evidence when the totality of the circumstances is considered. She argues that two
witnesses for the defense, herself and her daughter, testified that there was no
accident or vehicle collision, and that the only information the police had was based
upon the phone call of the alleged victim. She also argues that none of the police
saw any of the alleged traffic violations that lead to the traffic stop, that the only
photograph of Shoaf’s vehicle shows no damages to the vehicle, and that there was
also no debris found on the highway where the accident took place.
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Standard of Review
{¶8} As we recently stated in State v. Henson, 3d Dist. Marion No. 9-19-75,
2020-Ohio-4019, ¶ 17:
“Appellate review of a decision on a motion to suppress presents
a mixed question of law and fact.” State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial
court assumes the role of trier of fact and, as such, is in the best
position to evaluate the evidence and the credibility of witnesses.
Id. citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). When
reviewing a motion to suppress, “an appellate court must accept
the trial court’s findings of fact if they are supported by
competent, credible evidence.” Burnside at ¶ 8, citing State v.
Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s
conclusions of law, however, our standard of review is de novo,
and we must independently determine whether the facts satisfy
the applicable legal standard. Id. citing State v. McNamara, 124
Ohio App.3d 706 (4th Dist. 1997).
Law and Analysis
{¶9} “The Fourth Amendment to the United States Constitution and Section
14, Article I of the Ohio Constitution prohibit unreasonable searches and seizures,
including unreasonable automobile stops.” Bowling Green v. Godwin, 110 Ohio
St.3d 58, 2006-Ohio-3563, ¶ 11. Generally, “ ʻthe decision to stop an automobile is
reasonable where the police have probable cause to believe that a traffic violation
has occurred.’ ” Id., quoting Whren v. United States, 517 U.S. 806, 810 (1996).
However, as noted by the Ohio Supreme Court:
Probable cause is certainly a complete justification for a traffic
stop, but we have not held that probable cause is required.
Probable cause is a stricter standard than reasonable and
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articulable suspicion. State v. Evans, 67 Ohio St.3d 405, 411
(1993). The former subsumes the latter. Just as a fact proven
beyond a reasonable doubt has by necessity been proven by a
preponderance, an officer who has probable cause necessarily has
a reasonable and articulable suspicion, which is all the officer
needs to justify a stop.
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23.
{¶10} An officer only needs a reasonable articulable suspicion that a driver
may have committed a traffic offense in order to justify an investigative stop. See
State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 52. As this Court
has noted:
“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 Bobo at 178. “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). “Under this analysis,
a court should consider ‘both the content of the information
possessed by police and its degree of reliability.’” Id., quoting City
of Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999).
Gartrell at ¶ 53.
{¶11} As a result, “ ʻ[a]n officer does not have to have personally observed
a traffic violation * * * to justify detaining someone; rather, an officer can rely on
information transmitted to him through a dispatch[.]’ ” Gartrell at ¶ 54, quoting
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Steinbrunner, 2012-Ohio-2358, at ¶ 15, citing Weisner at 297. As noted by the
Fourth District:
An informant’s tip may provide officers with the reasonable
suspicion necessary to conduct an investigative stop. Abernathy,
4th Dist. No. 07CA3160, 2008-Ohio-2949 at ¶ 26. Where the
information possessed by the police before the stop stems solely
from an informant’s tip, the determination of reasonable
suspicion will be limited to an examination of the weight and
reliability due that tip. Maumee, 87 Ohio St.3d 295, 1999-Ohio-
68, at 299. The appropriate analysis then is whether the tip itself
has sufficient indicia of reliability to justify the investigative stop.
Id. Factors considered “highly relevant in determining the value
of the [informant’s] report” are the informant’s veracity,
reliability, and basis of knowledge. Id. (Citations omitted).
State v. George, 4th Dist. Ross No. 12CA3351, 2013-Ohio-2511, ¶ 16. In Maumee,
the Ohio Supreme Court further explained that a tip from an identified citizen
informant, even though it does not determine the outcome of the case and is only
one element of the totality-of-the-circumstances review of the tip itself, weighs in
favor of the informant’s reliability and veracity. Maumee at 302. In Maumee, the
Court concluded that the “informant was an identified citizen who based his
knowledge of the facts he described upon his own observations as the events
occurred. As a result, his tip merits a high degree of credibility and value, rendering
it sufficient to withstand the Fourth Amendment challenge without independent
police corroboration.” Id.{¶12} In this case, at the suppression hearing, the victim Ms. Newyear
testified that Shoaf’s vehicle (a dark Nissan Rogue) hit, or side-swiped, her vehicle
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on the driver’s side while she was driving on Interstate 75 in the Findlay area. She
stated that Shoaf did not stop. She then followed the Shoaf vehicle and her
passenger immediately contacted the police. She also testified she followed the
vehicle, never losing sight of it, until it was stopped by police.
{¶13} Trooper Gossard and Sergeant Kinney of the Ohio State Highway
Patrol both testified that they responded to the call the Findlay Dispatch Center
received about a hit-skip incident on Interstate 75 near mile post 156. The caller
was from the victim’s vehicle that was struck, following the other vehicle, and
updating dispatch regarding their location the entire way. Plus, dispatch provided
the suspect vehicle’s description and license plate number. Hardin County Sheriff’s
Deputies were called to assist, and located the suspect’s vehicle and stopped it, as
well as the victim’s vehicle stopped.
{¶14} The trial court was in the best position to determine Ms. Newyear’s
credibility; our role is to determine whether sufficient facts are in the record to
support the trial court’s conclusions. State v. Moiduddin, 3d Dist. Union No. 14-
18-15, 2019-Ohio-3544, ¶ 9. Based upon the totality of the circumstances and given
that the deputies, state trooper and sergeant relied on the dispatch from the identified
informant and the subsequent information to perform the investigative traffic stop
of Shoaf’s vehicle, we conclude that the trial court properly overruled Shoaf’s
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motion to suppress. The State’s evidence satisfies the burden of establishing the
stop’s constitutionality.
{¶15} We also do not agree that that the trial court’s ruling on the suppression
motion was against the manifest weight of the evidence. “When a defendant raises
a manifest-weight argument, we must review the entire record, weigh the evidence
and all reasonable inferences, consider witness credibility, and determine whether,
in resolving conflicts in the evidence, the trier of fact clearly lost its way and created
a manifest miscarriage of justice.” State v. Coppage, 2d Dist. Montgomery No.
19404, 2003-Ohio-2076, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52.
{¶16} Shoaf’s argument rests upon an implication that the trial court should
not have believed Ms. Newyear’s testimony. In particular, Shoaf challenges Ms.
Newyear’s testimony based on the contrary or conflicting testimony of Shoaf and
her daughter Rhesa that there was no accident. We note the trial court heard Ms.
Newyear’s testimony about some crucial facts with regard to the accident on which
her passenger’s call to dispatch was made and nothing about Ms. Newyear’s
testimony is so incredible. In light of this testimony, we cannot find that the trial
court’s denial of the motion to suppress was against the manifest weight of the
evidence.
{¶17} Based on the foregoing, Shoaf’s first assignment of error is overruled.
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Second Assignment of Error
{¶18} Shoaf makes two arguments under her second assignment of error.
She argues that the jury’s verdict of guilty of leaving the scene of an accident and
of OVI were against the manifest weight of the evidence. She also argues that the
trial court’s conviction of committing a marked lane violation was against the
manifest weight of the evidence.
Standard of Review
{¶19} Again, an appellate court applies the same manifest weight standard
of review. In determining whether a conviction is against the manifest weight of
the evidence, the appellate court sits as a “ ‘thirteenth juror’ ˮ and examines the
conflicting testimony. State v. Henson, 3d Dist. Marion No. 9-19-75, 2020-Ohio-
4019, at ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.
We review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether in resolving conflicts of
evidence, the factfinder “ ‘clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.’
ˮ Id.{¶20} However, a reviewing court must allow the trier-of-fact appropriate
discretion on matters relating to the credibility of the witnesses. Id., citing State v.
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DeHass, 10 Ohio St.2d 230, 231 (1967). Further, an appellate court will overturn a
conviction as being against the manifest weight of the evidence only in the
exceptional case in which the evidence weighs heavily against the conviction. Id.Controlling Statutes
{¶21} Shoaf was convicted of leaving the scene of an accident in violation
of R.C. 4549.02, OVI in violation of R.C. 4511.19(A)(1)(a), and a marked lane
violation in violation of R.C. 4511.33.
{¶22} “[R.C. 4549.02(A)(1)] In the case of a motor vehicle accident or
collision with persons or property on a public road or highway, the operator of the
motor vehicle, having knowledge of the accident or collision, immediately shall stop
the operator’s motor vehicle at the scene of the accident or collision. The operator
shall remain at the scene of the accident or collision until the operator has given the
operator’s name and address * * * to all of the following: (a) Any person injured in
the accident or collision; (b) The operator, occupant, owner, or attendant of any
motor vehicle damaged in the accident or collision; (c) The police officer at the
scene of the accident or collision.”
{¶23} “[R.C. 4511.19(A)(1)(a)] No person shall operate any vehicle * * *
[while] under the influence of alcohol[.]”
{¶24} “[R.C. 4511.33(A)(1)] Whenever any roadway has been divided into
two or more clearly marked lanes for traffic, or wherever within municipal
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corporations traffic is lawfully moving in two or more substantially continuous lines
in the same direction, the following rules apply: (1) A vehicle or trackless trolley
shall be driven, as nearly as is practicable, entirely within a single lane or line of
traffic and shall not be moved from such lane or line until the driver has first
ascertained that such movement can be made with safety.”
Analysis
{¶25} Shoaf asserts in support of her contentions regarding manifest weight
of the evidence that both she and her daughter testified that there was not an accident
and that there was no evidence that she ever left her lane of the highway.
{¶26} As part of its case-in-chief, the State produced the testimony of Hardin
County Sheriff’s Deputies Christopher Fannon and Luke Heilman, Ms. Newyear,
and Trooper Gossard and Sergeant Kinney of the Ohio State Highway Patrol.
{¶27} The trial testimony largely echoed that of the suppression hearing
testimony regarding the traffic stop in this case. Trooper Gossard and Sergeant
Kinney responded to the dispatch on August 23, 2020 regarding a hit-skip accident
that occurred on I-75 in Hancock County at mile post 156 and that the at-fault
vehicle was not stopping. Dispatch also reported the caller was following the
vehicle with continual updating of the vehicles’ location to them as they proceeded
to catch up to the vehicles. The Hancock County Sheriff’s deputies assisted in
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stopping the reported vehicle in Hardin County, with the other vehicle following
behind and the deputies being flagged down.
{¶28} Ms. Newyear testified that she was driving in the middle lane on
Interstate 75 when Shoaf’s vehicle hit the whole driver’s side of her vehicle, causing
her driver’s side mirror to close in. She testified that she was driving straight when
Shoaf’s vehicle came into her lane. Ms. Newyear testified Shoaf first did pull over
when she motioned her, then took off again, so she followed Shoaf’s vehicle and
her passenger called 911. She testified that she never lost sight of the vehicle she
was following, a dark-colored Nissan, until it was stopped, and she described the
damage to her vehicle starting from a dent at the front wheel well “but then even all
along * * * the hub cap area was all dark and it went all the way to the very back of
my car. It was the whole entire side of my car.” (Tr. at 77-78).
{¶29} During the stop, Sergeant Kinney observed the damage along the
entire driver’s side of Ms. Newyear’s light-colored sedan--a dent in the front fender,
some fresh scratches and scuffs, paint transfer, and some black marks which would
be tire transfer on the vehicle--and the same type of fresh damage on Shoaf’s
passenger side from front to back--scratches, paint transfer, some scuffs, and also
some black tire marks. According to Sergeant Kinney, the damages are consistent
with Ms. Newyear’s account of the accident in which the vehicle driving in the left-
hand lane came into the middle lane of traffic. Both deputies also observed the
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damage which Deputy Fannon stated appeared to be fresh on the passenger side of
Shoaf’s vehicle. Deputy Heilman was wearing a body cam at that time, and the
State introduced into evidence the video footage showing them observing the
damage on the vehicles. The jury watched the deputy’s body cam video, which
corroborated Ms. Newyear’s testimony about the damage from the accident.
{¶30} When Trooper Gossard asked Shoaf if she was involved in an
accident, she denied being in an accident. The trooper asked Shoaf to exit her
vehicle so that he could show the damage to her vehicle. The trooper asked Shoaf
about whether she had prior damage to the vehicle and she replied “no.” (Tr. at
105).
{¶31} The defense provided the testimony of Shoaf and her teenage
daughter, who was a passenger in her vehicle. Both maintain that no accident had
taken place on August 23rd. According to Shoaf, “everything was normal,” and she
“had gotten through the construction area.” (Tr. at 171). “There was a piece of
rubber in like the middle of the white lines so I would say the fast lane and middle
lane there was a piece of rubber so I kind of went around it but I never left my lane.”
(Id.) She further testified—“The next thing I know, like I said or like my daughter
testified, we were listening to music and talking amongst ourselves, everything was
fine. Next thing I know I am getting pulled over when I got off onto 68 in Kenton.”
(Id.) In addition, Shoaf testified that Defendant’s Exhibit A, a photo of her vehicle,
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was taken the following morning which she claims showed there were no “scrapes
and dents and scratches along my car.” (Tr. at 172).
{¶32} Despite the testimony in Shoaf’s defense, we note that there was
contradictory evidence and testimony presented about what occurred. The jury
heard testimony from the victim and the responding officers who indicated that there
was damage to both vehicles indicative of the fact that they had recently been in an
accident with one another. Additionally, while the jury viewed the photo that Shoaf
allegedly took on the day following the accident, the jury also viewed the body cam
footage documenting the damage on Shoaf’s vehicle. Further, the prosecution
presented, as rebuttal testimony, testimony from Trooper Gossard that the photo was
“not an accurate depiction of the vehicle at the scene.” (Tr. at 184).
{¶33} Although there are conflicts in the testimony presented at trial, such
conflicting testimony, in and of itself, does not demonstrate that a conviction was
against the manifest weight of the evidence. As this Court has stated, we will not
overturn a conviction as being against the manifest weight of the evidence simply
because the trier of fact chose to believe the State’s version of the events over
another version. State v. Anders, 3d Dist. Hancock No. 5-16-27, 2017-Ohio-2589,
¶ 57. Having reviewed the entire record, weighed the evidence and all reasonable
inferences, and examined the credibility of witnesses, we cannot conclude that the
jury clearly lost its way and created a manifest miscarriage of justice in choosing
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the State’s version of events. Accordingly, under the circumstances, Shoaf has not
demonstrated that her conviction for leaving the scene of an accident (hit/skip) is
against the manifest weight of the evidence. Further, as it pertains to the marked
lane violation, we do not find that Shoaf’s conviction is against the manifest weight
of the evidence.
{¶34} Shoaf further argues in support of her manifest weight of the evidence
contentions that there was “no proof that her blood alcohol level was over the legal
limit and no evidence showing her impairment.” (Appellant’s Brief at 13). Shoaf’s
argument is that she was having a diabetic episode when the police arrived on the
scene and how it would affect the field sobriety tests, or the fact of being “legally
blind,” were not taken into account when the tests were performed. The argument
is also that no additional tests were performed, beyond her two failed attempts to
perform a breathalyzer, to demonstrate the level of blood alcohol in her system.
{¶35} Shoaf herself testified that when the police pulled her over, she
explained her medical condition. Specifically, she testified that, “So I did test my
sugar. The officer asked if I was okay and I said yes I thought, so. And I showed
him my sugar and said it was quite high, about 250.” (Tr. at 171). Aside from this
fact, Shoaf did elaborate upon how it affects her, “He got me out of the vehicle, did
a field sobriety test, but my vision at that point was a little off and most of the time
when my sugar is very high I am very off kilter, off balance.” (Id.). She admitted
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to having one margarita at dinner and she later clarified that she had “one margarita
that was about that big and maybe two actual sips of another one.” (Tr. at 170, 177).
Shoaf further testified that she is legally blind in her left eye. She explained that “if
my hand was in front of me I was seeing double or triple, there wasn’t a straight line
of vision[.]” (Tr. at 172).
{¶36} Shoaf’s daughter also testified about when her mother’s sugar gets
high and stated that her vision can go blurry, her words can be slurred and she can
sometimes be off balance. Her daughter testified that she was not sure if her mother
was having any issues relating to her diabetes on the day of the stop, but “[a]ll I
know is I believe her sugar was high because she had to put her glasses on.” (Tr. at
160).
{¶37} The State points to our opinion in State v. Risner, 3d Dist. Seneca No.
13-19-03, 2019-Ohio-4120, in arguing there, as here, it is a credibility evaluation
and not the exceptional case where the evidence weighs heavily against the
conviction. The relevant part of this Court’s opinion states as follows:
Contrary to Risner’s arguments, the State presented evidence of
[Risner’s] impairment through Trooper Fowler’s testimony and
through the dash camera video wherein her divided attention tests
could be observed. In addition to this, the jury was able to see
Risner and evaluate her credibility as to whether they believed she
only had some “sips” of alcohol, and whether any purported
medical condition she claimed to have would have impacted her
on the field sobriety tests. Moreover, through the video the jury
was able to observe Risner’s performance on the divided attention
tests, and the jury could hear her voice. The jury was also able to
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evaluate the credibility of Trooper Fowler’s testimony regarding
the odor of an alcoholic beverage and Risner’s bloodshot, glassy
eyes. Credibility is a matter soundly within the determination of
the jury, and we must give deference to the jury’s determination.
State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
Risner at ¶ 36.
{¶38} The State thus argues that the jury here was also able to determine
whether they believed “any purported medical condition she claimed to have would
have impacted her on the field sobriety tests.” (Appellee’s Brief at 16).
{¶39} At Shoaf’s trial, Deputy Fannon testified that during his initial contact
with Shoaf, she told him “she was having a diabetic issue.” (Tr. at 25). The jury
also heard testimony that Trooper Gossard arrived on the scene shortly thereafter.
When Trooper Gossard approached Shoaf’s vehicle and spoke with her, she advised
him that she thought her blood sugar is high. He asked her if she needed an
ambulance and she replied, “no.” (Tr. at 105). While speaking to Shoaf about her
vehicle, Trooper Gossard detected an odor of alcohol emitting from within the
vehicle and also observed that her face was flushed, her cheeks were kind of red,
and her speech was slurred. Deputy Heilman could also smell the odor of an
alcoholic beverage coming from the vehicle.
{¶40} During the trooper’s investigation, Shoaf said that she had consumed
1 – ½ margaritas. Trooper Gossard recalled Shoaf again mentioning her blood sugar
issue and that she advised the same reply “no” when asked if she wanted an
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ambulance. (Tr. at 149). Trooper Gossard asked Shoaf to perform field sobriety
tests, to which Shoaf consented. Trooper Gossard then conducted a Horizontal Gaze
Nystagmus Test (“HGN”), noting Shoaf said she was legally blind in her left eye
but would try to follow his stimulus. Trooper Gossard testified that he “made an
effort to make sure that her left eye was tracking [his] stimulus correctly and it was.”
(Tr. at 110). Trooper Gossard testified in detail about the test, “Nystagmus is an
involuntary jerking of the eye and when somebody is on a depressant such as
alcohol, their eyes, the muscles around their eyes will relax to the point when their
eyes are moving that they will involuntary[ily] bounce.” (Tr. at 109). With respect
to the HGN test, Trooper Gossard testified that he observed six out of six possible
clues of impairment, or three in each eye.
{¶41} Trooper Gossard also had Shoaf perform walk-and-turn and one-leg
stand tests. On the walk-and-turn test, Trooper Gossard observed six out of eight
possible clues, with two clues indicating possible impairment. With respect to the
one-leg stand test, Trooper Gossard testified Shoaf could not hold her foot
approximately six inches off the ground for more than a few seconds at a time and
was ultimately marked down as “could not do” because of his concern that Shoaf
was going to fall over based on her attempts. (Tr. at 115). After conducting these
tests, Trooper Gossard, based on his training and experience and the observed signs
of impairment, believed that Shoaf was under the influence of alcohol. Through his
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training and experience, Trooper Gossard further testified that “we have never been
trained that a high blood sugar is going to show nystagmus in your eye, so one of
the tests that we rely most heavily on is the one that is 88 percent accurate, which is
the Horizontal Gaze Nystagmus Test[.]” (Tr. at 117). Following the field sobriety
tests, Trooper Gossard then arrested Shoaf for OVI. Shoaf’s performance on two
of the field sobriety tests—the walk-and-turn and the one-leg stand tests—was
recorded on Deputy Heilman’s body-cam, which was played for the jury.
{¶42} After arresting Shoaf, Trooper Gossard then transported her to the
Kenton Police Department. Trooper Gossard made two attempts to have Shoaf blow
into a breathalyzer machine, and she provided an insufficient breath sample on the
first attempt and an invalid sample reading the second time. According to Trooper
Gossard, Shoaf was ultimately marked down as refusing to take the breathalyzer test
because he believed that she was trying to sabotage the test.
{¶43} In addition, while Shoaf is correct that no additional tests were
performed to determine the level of alcohol in her system, we observe that she was
charged with OVI under R.C. 4511.19(A)(1)(a), which requires evidence that the
driver is under the influence of alcohol or drug of abuse. See State v. Henderson,
5th Dist. Stark No. 2004-CA-00215, 2005-Ohio-1644, ¶ 32. The jury was free to
rely on the accident, the testimony from law enforcement of their observations of
Shoaf at the scene, and the field sobriety tests, and we cannot find that the jury
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clearly lost its way here and created a manifest miscarriage of justice in reaching
the conclusion that Shoaf was under the influence of alcohol. Accordingly, Shoaf’s
conviction for OVI is not against the manifest weight of the evidence.
Third Assignment of Error
{¶44} In her third assignment of error, Shoaf asserts the trial court committed
reversible error in denying her motion for a mistrial because the jury was shown
video evidence of Shoaf taking a handheld breathalyzer test that would have
improperly influenced the jury.
Analysis
{¶45} At trial, Deputy Sheriff Heilman’s body camera footage taken during
the traffic stop of Shoaf was played for the jury. Defense counsel then requested a
mistrial based on the fact that a portion of the video, which was played for the jury,
showed Shoaf taking a handheld breathalyzer test. The trial court denied the motion,
finding that brief clip was no more than three to four seconds.
{¶46} “Generally, when a motion for a mistrial is actually made, its denial is
within the sound discretion of the trial court.” State v. Risner, 3d Dist. Seneca No.
13-19-03, 2019-Ohio-4120, at ¶ 40, citing State v. Garner, 74 Ohio St.3d 49 (1995);
State v. Dodson, 3d Dist. Seneca No. 13-10-47, 2012-Ohio-5576, ¶ 13. “Mistrials
should only be granted in those situations in which a fair trial becomes impossible.”
Id. citing State v. Franklin, 62 Ohio St.3d 118 (1991).
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{¶47} In this case, there was no more than a brief reference of the police
body-cam footage showing Shoaf taking a handheld or portable breathalyzer test,
and other factors minimized any potential prejudice resulting from it being viewed
by the jury. The jury never heard testimony from any witness regarding the portable
breath test or the results thereof. The trial court then gave a cautionary instruction
concerning the video after the evidence was closed and before the case went to the
jury. Therefore, based on this record, we conclude the trial court did not abuse its
discretion by denying the motion for mistrial. The third assignment of error is
overruled.
Fourth Assignment of Error
{¶48} In support of the fourth assignment of error, Shoaf asserts that she
received ineffective assistance of trial counsel for the following reasons: (1)
counsel failed to provide a medical expert as it related to Shoaf’s diabetes and
blindness in her one eye; (2) counsel failed to object to the State Trooper testifying
to the results of Shoaf’s diabetes and the field sobriety tests; (3) counsel failed to
move for acquittal of the OVI charge at the time of the Crim.R. 29 motion and failed
to renew the motion for acquittal at the close of defense evidence; (4) counsel failed
to argue the OVI charge in closing arguments; (5) counsel failed to object to
prosecutorial misconduct when the prosecutor, in closing, included facts not in
evidence; (6) counsel failed to move to suppress and/or object to the field sobriety
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tests; and (7) counsel failed to move to suppress and/or object to Shoaf’s statements
to the police after she was in police custody and not mirandized.
Legal Analysis
{¶49} To establish an ineffective assistance of counsel claim, Shoaf must
show both deficient performance, that her defense counsel’s performance fell below
an objective standard of reasonable representation, and prejudice. State v.
Blackburn, 3d Dist. Logan No. 8-21-25, 2022-Ohio-988, ¶ 18-19. Although the
issue of ineffective assistance of counsel is a two-pronged analysis, the appellate
court does not need to consider the facts of the case under both prongs if the
appellant makes an insufficient showing on one. State v. Crawford, 3d Dist. Henry
No. 7-20-05, 2021-Ohio-547, ¶ 18, citing State v. Baker, 3d Dist. Allen No. 1-17-
61, 2018-Ohio-3431, ¶ 19, citing State v. Walker, 3d Dist. Seneca No. 13-15-42,
2016-Ohio-3499, ¶ 20.
{¶50} “ ‘To show prejudice, the [appellant] must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.’ ˮ State v. Moll, 3d Dist. Defiance No. 4-19-17, 2020-Ohio-2784, ¶
4, quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 95. Moreover,
when considering the deficient performance part of an ineffectiveness claim inquiry,
a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. State v. Ball, 3d Dist. Allen No.
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Case Nos. 5-21-21, 5-21-22
1-21-16, 2022-Ohio-1549, ¶ 46. Thus, the appellant must overcome the strong
presumption that, under the circumstances, counsel’s performance was adequate or
that counsel’s actions might be considered sound trial strategy. State v. Artis, 3d
Dist. Logan No. 8-18-40, 2019-Ohio-2070, ¶ 31, citing State v. Maxwell, 139 Ohio
St.3d 12, 2014-Ohio-1019, ¶ 180. As this Court has recognized in reviewing claims
of ineffective assistance, tactical or strategic trial decisions, even if ultimately
unsuccessful, will not substantiate a claim of ineffective assistance of counsel. State
v. Hines, 3d Dist. Marion No. 9-05-13, 2005-Ohio-6696, ¶ 38. We further note that
counsel’s failure to make objections is not alone enough to sustain a claim of
ineffective assistance of counsel. Conway at ¶ 103.
{¶51} Shoaf first argues that her trial counsel’s failure to present medical
expert testimony as to Shoaf’s diabetes and blindness in one eye constitutes
ineffective assistance. Shoaf also argues her trial counsel was ineffective for failing
to object to Trooper Gossard’s testimony “as to his training as to diabetes and field
sobriety tests.” (Appellant’s Brief at 17). We note initially that “ ‘[a] decision by
trial counsel not to call an expert witness generally will not sustain a claim of
ineffective assistance of counsel.’ ˮ State v. Wilson, 3d Dist. Allen No. 1-20-46,
2022-Ohio-504, ¶ 134, quoting Conway at ¶ 118. This Court also pointed out in
Wilson that “[i]n fact, in many criminal cases trial counsel’s decision not to seek
expert testimony ‘is unquestionably tactical because such an expert might uncover
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Case Nos. 5-21-21, 5-21-22
evidence that further inculpates the defendant.’ ˮ Id., quoting State v. Glover, 12th
Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392, at ¶ 95. Further, as noted,
even if the decision may be debatable, a debatable trial strategy decision does not
constitute ineffective assistance of counsel. Id.{¶52} Based on the record in this case, it appears trial counsel made a
strategic decision under the circumstances of this case to focus on the issues through
lay testimony. As previously mentioned, Shoaf said that she was having high blood
sugar when she was stopped, but she told Trooper Gossard after he arrived and
spoke with her she did not want an ambulance called at that time and also several
times later when he asked her during the field sobriety tests. The State’s questioning
on direct was limited to what Trooper Gossard knew based on his training and
experience using field sobriety tests, including HGN tests, and, in fact, Shoaf never
indicated any unwillingness to perform the tests because of her medical conditions
at the time. Then, on cross-examination on the subject, Trooper Gossard admitted
that his training in field sobriety tests was designed to detect impairment from
alcohol rather than diabetes. Further, trial counsel and the prosecutor did not ask
Shoaf complex medical questions, but rather asked Shoaf and her daughter about
Shoaf’s symptoms when her blood sugar is high. Accordingly, Shoaf fails to
demonstrate ineffective assistance here as she does not demonstrate a reasonable
probability of a different outcome of her trial.
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Case Nos. 5-21-21, 5-21-22
{¶53} Shoaf next argues ineffective assistance of trial counsel based on
counsel’s failure to include the OVI charge in the Crim.R. 29 motion for acquittal
or argue it in closing argument, and also to renew the Crim.R. 29 motion at the close
of the defense evidence.
{¶54} We note trial counsel made a Crim.R. 29 motion for acquittal at the
close of the State’s case in chief with respect to the marked lane and leaving the
scene of an accident violations. The motion was denied. At the conclusion of all
the testimony, trial counsel did not renew the Crim.R. 29 motion.
{¶55} The standard applied by a trial court determining a Crim.R. 29 motion
is set forth in State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus: “Pursuant to
Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the
evidence is such that reasonable minds can reach different conclusions as to whether
each material element of a crime has been proved beyond a reasonable doubt.” In
reviewing claims of ineffective assistance, including a claim that failure to make a
Rule 29 motion for acquittal constituted ineffective assistance, we note this Court’s
decision in State v. Hines, 3d Dist. Marion No. 9-05-13, 2005-Ohio-6696, at ¶ 38,
in which we concluded upon review of the trial court record that: “the evidence [of
the] case regarding the claims of ineffective assistance of counsel revealed tactical
or strategic trial decisions. As such, they do not fall below an objective standard of
reasonable representation.”
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Case Nos. 5-21-21, 5-21-22
{¶56} Upon review, even though it appears that trial counsel’s choices in the
present case can be considered as a matter of trial tactics or strategy, we find the
evidence produced by the prosecution would have passed a Crim.R. 29 challenge.
Further, we note that a “prominent” part of trial counsel’s closing argument was on
the issue of the accident, as the jury heard conflicting testimony on this issue, and
that the video was helpful to the defense’s case. Counsel concluded his argument
by asking the jury to “watch the video” and by stating: “And when you are finished
I am confident that you will find Anna Shoaf not guilty of these charges.” (Tr. at
199). Consequently, the record in this case does not support these particular
allegations of ineffective assistance of trial counsel.
{¶57} Shoaf next argues that trial counsel was ineffective for failing to object
to two instances of alleged prosecutorial misconduct during the prosecution’s
closing argument. “ ‘The test for prosecutorial misconduct during * * * closing
arguments is whether the remarks made by the prosecutor were improper and, if so,
whether they prejudicially affected a substantial right of the accused.’ ˮ State v.
Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555, ¶ 82, quoting State v. Siefer,
3d Dist. Hancock No. 5-09-24, 2011-Ohio-1868, ¶ 46, citing State v. White, 82 Ohio
St.3d 16, 22 (1998). “ ‘In closing arguments, prosecutors are entitled to some
latitude regarding what the evidence has shown and the inferences that can be
drawn.’ ˮ Id., quoting State v. McGuire, 3d Dist. Allen No. 1-13-47, 2015-Ohio-
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Case Nos. 5-21-21, 5-21-22
1887, ¶ 81, citing State v. Ballew, 76 Ohio St.3d 244, 255 (1996). However, a
prosecutor cannot go beyond the evidence which is before the jury when arguing
for a conviction. Id. Additionally, to establish prejudice, an appellant must show
that a reasonable probability exists that, but for the prosecutor’s improper remarks,
the result of the proceeding would have been different. State v. Liles, 3d Dist. Allen
No. 1-14-61, 2015-Ohio-3093, ¶ 31.
{¶58} The first instance of alleged misconduct occurred when the prosecutor
argued to the jury that Shoaf “is around people who have been under the influence.
She’s around attorneys who have tried these kinds of cases. She has heard someone
say oh you mentioned you have diabetes, you can get off.” (Tr. at 190). There was
some evidence in the record that Shoaf was currently working at a high-end
steakhouse and a country club. However, there was no evidence that Shoaf ever
heard any such comments, met any such customers or attorneys, or had any such
conversations, during such employment. As such, the prosecution’s statements,
essentially urging the jurors to presume the existence and content of such
conversations, based solely on the fact of her employment at those locations, was
improper and constituted error.
{¶59} The second instance of alleged prosecutorial misconduct occurred
when the prosecutor argued to the jury “you heard the Trooper testify as to why he
did all the field sobriety tests he did.” (Tr. at 191). The prosecutor continued: “He
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did all of them to rule out diabetes. He did it to say yes we were right, that could be
something that I should be concerned about and how can I assist you if there is a
medical condition, you don’t want me to call an ambulance, okay, now I’ve got
another job because when I talk to you about this accident I am smelling alcohol.
Now I am going to run you through the H.G.N., Horizontal Gaze Nystagmus. That
is not affected by diabetes. You heard that testimony.” (Id.). While Trooper
Gossard did testify that through his training and experience he has never been told
that high blood sugar is going to make a person have nystagmus, the prosecutor’s
suggestion that the field sobriety tests in this case were conducted to rule out
diabetes, exceeded the limits of acceptable argument based on the trooper’s
testimony, which was that he had received training on field sobriety tests designed
to detect alcohol impairment in drivers, and that he had not received any instruction
on the effects of diabetes on those tests.
{¶60} In sum, we acknowledge prosecutorial error in both of these instances.
However, we cannot find that the misconduct was so prejudicial that Shoaf was
deprived of a fair trial in the context of the entire record and in light of the trial
court’s instruction to the jury that “[t]he evidence does not include * * * the opening
statements or closing arguments” of either attorney (Jury Charge at 8).
{¶61} Finally, Shoaf argues that her trial counsel was ineffective because he
failed to move to suppress and/or object to the admission of the field sobriety tests
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and also to suppress and/or object to her statements about consuming alcohol on the
ground that she was in police custody and not mirandized.
{¶62} Contrary to Shoaf’s argument, trial counsel did file motions to
suppress the evidence obtained as a result of the traffic stop, including “tests
designed to ascertain Defendant’s possible impairment from alcohol or drugs of
abuse” and “statements or assertive conduct made by Defendant in response to
questioning,” and the trial court denied the motions. (Doc. No. 16 Case No.
20TRC04154; Doc. No. 10 Case No. 20CRB01177). Moreover, in reviewing an
ineffective assistance claim for failure to file a motion to suppress, this Court
recently noted that “ ‘the 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.’ ˮ State v. Line, 3d Dist. Allen No. 1-19-07, 2019-Ohio-
4221, ¶ 10, quoting State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499,
¶ 23, quoting State v. Brown, 12th Dist. Warren No. CA2002-03-026, 2002-Ohio-
5455, ¶ 11.
{¶63} It is well-established that a police officer may not request a motorist
to perform field sobriety tests unless that request is based on a reasonable,
articulable suspicion that the person was driving under the influence of alcohol or
drugs. See State v. Angers, 3d Dist. Auglaize No. 2-21-04, 2021-Ohio-3640, ¶ 26.
The totality of the circumstances is considered when analyzing the reasonableness
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of the request, viewed through the eyes of a reasonable and prudent police officer
on the scene who must react to events as they unfold. State v. Null, 3d Dist. Logan
No. 8-19-50, 2020-Ohio-3222, ¶ 18.
{¶64} Here, in light of the detailed record before us, Shoaf cannot show that
a motion to suppress concerning whether there was reasonable suspicion to conduct
the field sobriety tests would have been granted had it been filed, and she thus fails
to make the necessary showing to establish ineffective assistance of counsel. As
such, given the totality of the circumstances beyond Shoaf’s traffic violations, trial
counsel’s failure to object to in-court testimony does not amount to ineffective
assistance. Also, to the extent Shoaf attempts to assert ineffective assistance based
on trial counsel’s failure to use the National Highway Traffic Safety Administration
(NHTSA) manual to question Trooper Gossard, we note that the parties first
stipulated at trial to the trooper’s NHTSA training and certification with respect to
administering field sobriety tests and that he then testified about the tests he
administered and how he evaluated the results of each of the standardized tests
administered to Shoaf in accordance with his training and the NHTSA standards for
conducting field sobriety tests.
{¶65} In addition, from a review of the record, we find that Shoaf has not
established ineffective assistance of counsel for failure to challenge her statements
about consuming alcohol. The facts indicate that Trooper Gossard’s questions about
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Shoaf’s consumption of alcohol and her statements were made prior to being
arrested and placed in custody. During the traffic stop, Trooper Gossard asked
Shoaf to come and sit in the front seat of his patrol car while he asked her questions
about the crash and attempted to get a statement, and also asked her questions about
her consumption of alcohol. According to Trooper Gossard’s testimony, Shoaf had
originally stated during the traffic stop that she had consumed one margarita, but
later while seated in the patrol car she stated that she had 1 – ½ margaritas. She was
not handcuffed, nor under arrest at that time. As this Court has previously held, a
person is not in custody when they are patted down and placed in the back seat of a
patrol car for safety purposes. State v. Heimberger, 3d Dist. Marion No. 9-17-45,
2018-Ohio-3001, ¶ 19. The person was not handcuffed and was not under arrest.
Id. Similarly, in a case more closely aligned factually with this one, the Seventh
Appellate District concluded that a person is not in custody for purposes of Miranda
when the questioning regarding consumption of alcohol occurred during an ordinary
traffic stop. State v. Leffler, 7th Dist. Columbiana No. 18 CO 0032, 2019-Ohio-
3964, ¶ 27. Further, in that case, although the person had been patted down and was
seated in the backseat of a cruiser when a second questioning occurred regarding
consumption of alcohol, the person was not handcuffed at that point and no
statement was obtained in violation of Miranda. Id. at ¶ 29, 32.
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{¶66} Accordingly, for all the foregoing reasons, Shoaf’s fourth assignment
of error is overruled. The judgments of the Findlay Municipal Court, Hancock
County, appealed from are affirmed.
Judgments Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
/jlr
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