State v. Risner , 2019 Ohio 4120 ( 2019 )

[Cite as State v. Risner, 2019-Ohio-4120.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-19-03
v.
MINDY L. RISNER, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. TRC 1801386 A
Judgment Affirmed
Date of Decision: October 7, 2019
APPEARANCES:
W. Alex Smith for Appellant
Charles R. Hall, Jr. for Appellee
Case No. 13-19-03
SHAW, J.
{¶1} Defendant-appellant, Mindy L. Risner (“Risner”), brings this appeal
from the January 16, 2019, judgment of the Tiffin-Fostoria Municipal Court
sentencing her to serve 60 days in jail, with 57 suspended, after she was found guilty
by a jury of OVI in violation of R.C. 4511.19(A)(1)(a). On appeal, Risner argues
that there was insufficient evidence presented to convict her, that her conviction was
against the manifest weight of the evidence, that the trial court erred by failing to
sua sponte declare a mistrial, that the trial court erred by denying her suppression
motion as untimely filed, that she received ineffective assistance of counsel, and
that the cumulative errors prejudiced her.
Background
{¶2} On April 6, 2018, at approximately 11:50 p.m., Risner’s vehicle was
stopped by Trooper Jason Fowler of the Ohio State Highway Patrol for failing to
use a turn signal. Upon approaching Risner’s vehicle, Trooper Fowler detected the
odor of an alcoholic beverage from inside the vehicle. He also observed that Risner
had bloodshot, glassy eyes. Risner indicated that she and her boyfriend, who was
in the passenger seat, were going home from a bar and that she had consumed two
drinks—one beer and one “liquor” drink.
{¶3} Trooper Fowler had Risner step out of the vehicle and come to his
cruiser, where he more specifically detected the odor of an alcoholic beverage
-2-
Case No. 13-19-03
emanating from Risner’s breath. He performed field sobriety tests on Risner, noting
6 of 6 clues on the HGN test, 3 of 4 clues on the one-leg stand test, and 2 clues on
the walk-and-turn test. Considering all the facts and circumstances, Trooper Fowler
arrested Risner and charged her with OVI in violation of R.C. 4511.19(A)(1)(a).
She was also charged with failure to wear a seat belt in violation of R.C.
4513.263(B)(1), and failure to use a turn signal in violation of R.C. 4511.39. At the
police station, Risner was offered a breath test, which she attempted but could not
complete. Risner stated at that point that she had lung issues and was unable to
complete a second attempt at the test. Trooper Fowler offered Risner a urine test
instead and Risner indicated that she did not have to urinate, so Trooper Fowler
marked it as a refusal. Risner was subsequently arraigned and she pled not guilty
to the charges.
{¶4} Multiple pretrial hearings were held and the matter was set for trial. On
August 6, 2018, Risner filed a suppression motion arguing, inter alia, that the
trooper lacked reasonable suspicion to stop her vehicle.
{¶5} On August 13, 2018, the State filed a response to Risner’s suppression
motion arguing that Risner failed to timely file the motion. The State argued that
pursuant to Crim.R. 12(D), a suppression motion had to be filed within 35 days after
arraignment, and this motion was not filed until 73 days had lapsed.
Notwithstanding this point, the State argued, inter alia, that the trooper had
-3-
Case No. 13-19-03
reasonable articulable suspicion to stop Risner’s vehicle based on her failure to use
a turn signal.
{¶6} On August 15, 2018, the trial court summarily denied the suppression
motion without a hearing “based on being untimely.” (Doc. No. 21).
{¶7} On January 15, 2019, the day before the scheduled trial, Risner filed a
motion in limine seeking to prevent the State from presenting any evidence related
to the administration of a portable breath test or a result of the portable breath test.
{¶8} The matter proceeded to a jury trial on January 16, 2019. The State
called Trooper Fowler to testify, and entered a video of the traffic stop and field
sobriety tests into evidence (minus the HGN, which was not recorded from the dash
camera). Risner’s boyfriend Matthew Groose then testified on her behalf, and
Risner testified herself.
{¶9} The jury found Risner guilty of OVI in violation of R.C.
4511.19(A)(1)(a). The minor misdemeanor violations related to failing to use a turn
signal and failing to wear a seatbelt were tried to the bench. The trial court found
Risner guilty of failure to use a turn signal, indicating that the failure was captured
on the dash camera video. However, the trial court found Risner not guilty of the
seatbelt violation as Trooper Fowler testified that he could not recall if Risner was
wearing a seatbelt.
-4-
Case No. 13-19-03
{¶10} The trial court proceeded immediately to sentencing. Risner was
sentenced to 60 days in jail, with 57 suspended on various conditions, she was fined
$375, and she was placed on probation for 2 years. A judgment entry memorializing
Risner’s sentence was filed January 16, 2019. It is from this judgment that she
appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
Appellant’s conviction is against the manifest weight of the
evidence.
Assignment of Error No. 2
Appellant’s convictions were against the sufficiency of the
evidence.
Assignment of Error No. 3
The trial court [erred] by not declaring a mistrial [sua] sponte due
to manifest necessity after jurors had been permitted to view an
un-redacted version of the video of the stop that contained results
of a PBT test.
Assignment of Error No. 4
The trial court abused its discretion and violated the defendant’s
right to due process when it denied the motion to suppress without
a hearing and deemed it untimely filed.
Assignment of Error No. 5
Appellant was denied her Sixth Amendment right guaranteed by
the United States Constitution by being denied effective assistance
of counsel.
Assignment of Error No. 6
The errors set forth in assignments of error amount to cumulative
error.
-5-
Case No. 13-19-03
{¶11} For the sake of clarity, we elect to address some of the assignments of
error out of the order in which they were raised.
Second Assignment of Error
{¶12} In Risner’s second assignment of error, she argues that there was
insufficient evidence presented to convict her. Specifically, she contends that the
evidence did not establish that she was impaired to the level that would support a
conviction for OVI.
Standard of Review
{¶13} Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Sufficiency is
a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency
challenge, “ ‘the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
Analysis
{¶14} In this case, Risner challenges her OVI conviction in violation of R.C.
4511.19(A)(1)(a), which reads: “No person shall operate any vehicle * * * , within
-6-
Case No. 13-19-03
this state, if, at the time of the operation * * * [t]he person is under the influence of
alcohol, a drug of abuse, or a combination of them.”
{¶15} In order to convict Risner at trial, the State presented the testimony of
Trooper Fowler of the Ohio State Highway Patrol. Trooper Fowler testified that on
Friday April 6, 2018, he was working the 10 p.m. to 6 a.m. shift in a marked cruiser,
wearing his standard uniform. Trooper Fowler testified that there was more
“activity” on Friday nights, and that while patrolling he looked for traffic violations
to reduce crashes in the Seneca County area. (Tr. at 68). He testified that he
generally looked for impaired drivers. (Id.) Trooper Fowler testified that he was
trained in OVI detection and that he was trained in giving field sobriety tests.
Trooper fowler testified that he had arrested over 200 people for OVI in his career,
including 107 people in 2018 alone.
{¶16} While on patrol during the night in question, Trooper Fowler testified
that he saw a vehicle leaving the area of a bar in Tiffin and decided to follow it. The
vehicle made multiple turns, and during one of the turns no turn signal was used.
Trooper Fowler testified that at that point he decided to initiate a traffic stop.
Trooper Fowler testified that he briefly lost sight of the vehicle while following it
but recognized it by the tail lights and caught up to it.
{¶17} Trooper Fowler testified that after he made the traffic stop, he
approached the vehicle and learned that Risner was the driver, and her boyfriend
-7-
Case No. 13-19-03
was in the front passenger seat. Trooper Fowler testified that he noticed the odor of
an alcoholic beverage from inside the vehicle. He observed Risner to have
bloodshot, glassy eyes. He asked her to come back to his patrol car and she did. At
that point Trooper Fowler detected the same odor of an alcoholic beverage
emanating specifically from Risner’s breath. He asked how much she had to drink
and she said “two drinks,” specifically one liquor drink and one beer. (Tr. at 72).
{¶18} Trooper Fowler testified that the odor of alcohol and her statement
alone were not enough for an OVI arrest, so he had Risner perform field sobriety
tests. Trooper Fowler testified that he performed the HGN test and saw 6 of 6 clues
of impairment, which provided a 70 percent chance that someone was going to be
over the legal limit. Trooper Fowler testified that he suspected at this point Risner
had more than two drinks but did not arrest her yet.
{¶19} Trooper Fowler testified that he then administered “divided attention
tests,” specifically the walk-and-turn test and the one-leg stand test. Trooper Fowler
testified that he noticed two clues of impairment on the walk and turn test, those
being that Risner did not touch her heel to toe on all her steps and that she went the
incorrect amount of steps on one trip. On the one-leg stand test he observed 3 of 4
clues, those being that she swayed, put her foot down, and raised a hand more than
six inches. Trooper Fowler testified that overall Risner did not do well on the tests.
At that point he arrested Risner for OVI.
-8-
Case No. 13-19-03
{¶20} Trooper Fowler testified that based on the totality of circumstances
Risner was an impaired driver and her ability to drive would be affected by alcohol.
Trooper Fowler testified that he administered a breath test to Risner at the station,
but Risner provided an invalid sample. Risner tried again and the sample was still
invalid. At that time Risner said she had a lung disease or a lung issue. Trooper
Fowler offered Risner a urine test instead but she indicated she could not urinate
due to kidney issues.
{¶21} Video footage from Trooper Fowler’s vehicle was entered into
evidence. The footage showed the stop of Risner’s vehicle, and the divided attention
field sobriety tests. The HGN was not performed in front of the camera.
{¶22} On appeal, Risner argues that there was insufficient evidence
presented to convict her. She contends that “at no time was evidence presented that
indicated [she] was intoxicated. No evidence was presented that she was impaired
and there certainly was no evidence presented that there was any impaired driving.”
(Appt.’s Br. at 7).
{¶23} Contrary to Risner’s argument, Trooper Fowler gave specific
testimony regarding the totality of the circumstances that led him to conclude that
Risner was operating her vehicle while impaired. He testified regarding the odor of
an alcoholic beverage coming from Risner’s breath, her bloodshot, glassy eyes, her
admission to having two drinks, and the numerous clues of impairment on all of the
-9-
Case No. 13-19-03
field sobriety tests. Some of these, such as swaying by Risner on the one-leg stand
test, could be readily observed by the jury on the dash camera video.
{¶24} This Court has previously determined that similar observations
combined with the odor of an alcoholic beverage is circumstantial evidence to
support a conviction for OVI. State v. Sullivan, 3d Dist. Hancock No. 5-17-09,
2017-Ohio-8937, ¶ 34, citing State v. Norris, 168 Ohio App. 3d 572, 2006-Ohio-
4325, ¶ 16 (12th Dist.) (holding that “[c]ircumstantial evidence and direct evidence
have the same probative value, and in some instances, certain facts can be
established only by circumstantial evidence.”). In establishing that a defendant was
under the influence of alcohol, the State “need not establish a threshold level of
alcohol concentration in the defendant’s body. It must, however, prove that the
defendant operated a vehicle when his faculties were appreciably impaired by the
consumption of alcohol. State v. Lowman, 82 Ohio App. 3d 831, 836 (12th
Dist.1992), citing State v. Bakst, 30 Ohio App. 3d 141 (1st Dist.1986); State v.
Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-8937, ¶ 30.
{¶25} When looking at the totality of the circumstances most favorable to
the State, as we are directed in our review, we cannot find that there was insufficient
evidence presented to convict Risner of OVI in this matter. Therefore, her second
assignment of error is overruled.
-10-
Case No. 13-19-03
First Assignment of Error
{¶26} In Risner’s first assignment of error, she argues that her OVI
conviction was against the manifest weight of the evidence.
Standard of Review
{¶27} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. Thompkins at 388. In doing so, this Court must review the entire record,
weigh the evidence and all of the reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the 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.” Id. at 387.
{¶28} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State
v. DeHass, 10 Ohio St. 2d 230, 231, 227 N.E.2d 212 (1967). When applying the
manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs
heavily against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶ 119.
-11-
Case No. 13-19-03
Analysis
{¶29} In her case-in-chief, Risner presented testimony that she believes
refuted the evidence offered by the State. Risner’s boyfriend, Matthew Groose
(“Groose”), testified that Risner had been having “setbacks” with her “medication”
in the days prior to the OVI arrest. (Tr. at 137). He indicated that Risner had not
gotten out of bed in the preceding days.
{¶30} Groose testified that on April 6, 2018, he went to work and came home
around 5 p.m. At that time Risner agreed to go to Groose’s mother’s residence with
him for an Easter-related gathering. Groose testified that they got to his mother’s
around 5:30, and that pina coladas were served to everyone. Groose testified that
he saw Risner drink only a few sips. Groose testified that around 8 p.m. Risner left
to go home because she was not feeling well. However, Groose and Risner
continued texting, and Risner returned around 10 p.m. to pick up Groose and take
him to the bar. They went into the bar together and Groose testified that Risner had
a few sips of beer but that was it.
{¶31} Groose testified that they left the bar after about an hour, and ordered
food to be delivered to their home. Groose testified that on the ride home he
believed Risner consistently used her turn signals, contrary to Trooper Fowler’s
testimony; however, he indicated when watching the video that he was uncertain, at
best, whether a turn signal could be seen being used.
-12-
Case No. 13-19-03
{¶32} Risner testified on her own behalf, stating that she had a condition
called “myasthenia gravis,” which she stated was a rare muscle condition that
impacted all the muscles of her body. She testified she was having issues in the
days leading up to the arrest, and that she had not gotten out of bed, but her doctor
told her she needed to get up, so she went to dinner with Groose despite not feeling
well. She testified that she only had a couple of sips of the pina colada, and some
sips of water. She testified that after a couple of hours she was not feeling well so
she went home.
{¶33} Risner testified that she was exchanging messages with Groose and he
invited her to go to a bar with his family. She picked him up and drove him there,
arriving around 10:45. She testified that she had a few sips of beer at the bar, but
nothing else. She testified that she was finally hungry so they ordered some food
and left the bar. She testified she used her turn signals on the way home, but was
still stopped by Trooper Fowler anyway.
{¶34} Risner testified that she told the officer of her medical conditions at
various points throughout the conversation surrounding the field sobriety tests. She
testified it was very cold and windy outside during her tests and that her medical
issues caused problems. She denied being impaired.
{¶35} Risner contends that when the totality of all the circumstances and all
of the evidence is considered, her OVI conviction was against the manifest weight
-13-
Case No. 13-19-03
of the evidence. She argues that she exhibited no poor driving on the dash camera
video, and that there were only some vague clues of impairment on the various field
sobriety tests. She also argues that the State did not establish that the vehicle that
was stopped for failing to use a turn signal was the same vehicle Risner was driving
because Trooper Fowler testified he lost sight of the vehicle briefly.
{¶36} Contrary to Risner’s arguments, the State presented evidence of her
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 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).
{¶37} Moreover, although Risner argues that the State did not establish that
her vehicle was the vehicle that failed to use a turn signal because Trooper Fowler
briefly lost sight of it, Trooper Fowler testified that the taillights were the same and
-14-
Case No. 13-19-03
that there were no other cars on the road. Trooper Fowler was confident he had the
correct vehicle. Thus her argument as to this issue is not well-taken.
{¶38} On balance, we cannot find that the jury clearly lost its way here, or
that Risner’s conviction for OVI was against the manifest weight of the evidence.
Therefore, Risner’s first assignment of error is overruled.
Third Assignment of Error
{¶39} In Risner’s third assignment of error, she argues that the trial court
erred by failing to sua sponte declare a mistrial in this matter. Specifically, she
contends that the video of the traffic stop entered into evidence that was sent back
to the jury could have been viewed in its entirety and that there were portions of the
video that should not have been shown, and could have been prejudicial such as the
result of her portable breath test.
Standard of Review
{¶40} Generally, when a motion for a mistrial is actually made, its denial is
within the sound discretion of the trial court. 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. State v. Franklin, 62 Ohio St. 3d 118 (1991). However, when a
defendant fails to move for a mistrial at all once he discovers the grounds that would
form the basis for his motion, he forfeits all but a claim of plain error. State v.
-15-
Case No. 13-19-03
Hamilton, 9th Dist. Lorain No. 17CA011238, 2019-Ohio-1829, ¶ 6, appeal not
allowed 156 Ohio St. 3d 1479, 2019-Ohio-3148, ¶ 6 (2019) citing State v. Litten, 9th
Dist. Summit No. 26812, 2014-Ohio-577, ¶ 27.
{¶41} For this Court to notice plain error, the error must be an obvious defect
in a trial’s proceedings, it must have affected substantial rights, and it must have
affected the outcome of the trial. State v. Steele, 138 Ohio St. 3d 1, 2013-Ohio-2470,
¶ 30 (2013), citing State v. Eafford, 132 Ohio St. 3d 159, 2012-Ohio-2224, ¶ 11,
citing State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642; State v. Lynn, 129 Ohio
St.3d 146, 2011-Ohio-2722, ¶ 13; Crim.R. 52(B). Moreover, “even when the
minimum requirements have been met, a reviewing court should still be
conservative in its application of plain-error review, reserving notice
of plain error for situations involving more than merely theoretical prejudice to
substantial rights.” Steele at ¶ 30, citing State v. Long, 53 Ohio St. 2d 91, 94 (1978).
“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Long at paragraph three of the syllabus.
Analysis
{¶42} The day before trial, Risner filed a motion in limine seeking to prevent
the State from producing any evidence of the results of a portable breath test that
had been taken in this matter and the results of that portable breath test. Although
-16-
Case No. 13-19-03
no official ruling was made on the record on this issue, the State did not present
testimony regarding the portable breath test. Nevertheless, Risner argues that on
the video that was introduced into evidence the portable breath test can be observed
on one of the segments not played in court if the jury had elected to watch the video
beyond what was played in court.
{¶43} During the trial on this matter, the State played video of the dash
camera footage from Trooper Fowler’s vehicle. Specifically the State played the
portions where Trooper Fowler observed Risner’s vehicle, stopped Risner’s vehicle,
and then where Trooper Fowler had Risner perform field sobriety tests. Some of
those portions of the video were shown and repeated multiple times. The State
moved to enter the video into evidence, and it was admitted without objection.
{¶44} In fact, the entire recording was actually entered into evidence, beyond
just what was played in court. There were ten total segments on the video, five from
the dash camera and five from the backseat camera. The segments were ten minutes
in length, except for the last segment of the dash camera and the backseat camera,
which were approximately three minutes in length. At trial, it appears that the focus
of the testimony was on the first segment from the dash camera, as it covered the
traffic stop and the field sobriety tests. It does not appear that any of the subsequent
segments of the video were shown.
-17-
Case No. 13-19-03
{¶45} However, in the second segment of the video, Risner takes a portable
breath test. Trooper Fowler does not mention the test result, but he later tells
Risner’s boyfriend that Risner was at a “one-one-seven.” (State’s Ex. A). The video
that was introduced into evidence was not redacted to remove the other nine
segments that were not played in court, and this issue was not brought to the trial
court’s attention until after the jury had been sent for deliberations. At that time,
the following discussion took place between the trial court and the attorneys.
THEREUPON, the jurors were excused to deliberate and the
following proceedings took place.
THE COURT: What do you have, [Defense Counsel]?
[DEFENSE COUNSEL]: Your Honor, the only concern we have
is that the video not be played without the Court having
knowledge because of the – there’s part of that video that
shouldn’t be played because of the 117.1
THE COURT: Okay.
[DEFENSE COUNSEL]: I’m just advising the Court.
THE COURT: Okay. How do I stop it?
[DEFENSE COUNSEL]: I think the Bailiff will have to go in
there. We have the – they can’t play it without – they can’t play
it in there.
THE COURT: You’re saying how – yeah, they can’t play it in
there.
1
The “117” references the result of the portable breath test.
-18-
Case No. 13-19-03
[DEFENSE COUNSEL]: Yes, before they start playing it we
should –
THE COURT: We should what?
[PROSECUTOR]: If you tell them there’s more to hear they’re
going to want to hear it. They’re not going to want to listen to
anymore on that.
THE COURT: Counsel, I wish the both of you would have edited
before this because I can’t tell them, oh, you need to stop it at 078.
[PROSECUTOR]: Yeah, that just brings it to their attention.
[DEFENSE COUNSEL]: I think we risk a mistrial, Your Honor.
THE COURT: [Defense Counsel], whose fault is that? Is that my
fault?
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: Counsel.
[DEFENSE COUNSEL]: We’re bringing it to the Court’s
attention, Your Honor.
THE COURT: I’m saying, [Defense Counsel], you had some
control over these exhibits as well as you did, [Prosecutor].
[PROSECUTOR]: I don’t have a problem.
THE COURT: I don’t know what I’m supposed to do. I’m not
going to go in there and be the AV boy for the jury, and I’m not
going to have my Court Bailiff be the AV boy for the jury. So
please figure out how you’re going to resolve this. Thank you.
[PROSECUTOR]: You’re raising an issue that’s not an issue.
You have no idea if this is going to happen. My guess is in 20
minutes you’ll have your not guilty verdict and we can all go home
-19-
Case No. 13-19-03
probably. By 5:00 you’ll have a verdict, I guarantee it. Probably
more of a chance you got a not guilty.
THE BAILIFF: Tiffin-Fostoria Municipal Court is now in
session.2
THE COURT: All right, everybody, please be seated. Thank you.
Well, ladies and gentleman of the jury, took a little bit longer, I
appreciate everyone sticking with it. The Court’s been informed
that you’ve reached a verdict, have you selected one of your
number as the foreperson?
JUROR: Yes.
(Tr. 213-216).
{¶46} On appeal, Risner argues that the jurors had been exposed to
prejudicial information through the portable breath test results in the video, and that
the trial court should have sua sponte granted a mistrial once it was informed of the
potential problem. The State responds by contending that there is actually no
indication in the record that the jury ever viewed the video at all in the jury room,
let alone viewed the separate segments of the video concerning the portable breath
test, thus there can be no plain error here.
{¶47} We agree with the State that there is no indication in this matter that
the jury viewed prejudicial information. We also note that the trial court encouraged
the parties to fix the issue, but because of the nature of the transcript and the record
in this matter, it is unclear if anything was done.
2
This is the very next line of the transcript. There is no indication of a time gap, though there could have
been. The record is simply unclear.
-20-
Case No. 13-19-03
{¶48} Plain error is to be recognized with the utmost caution. And even if
we were to find plain error, we would have to find that the obvious defect in the
proceedings affected Risner’s substantial rights in order to reverse the conviction.
We have no indication whether the jury even viewed the video at all while
deliberating, let alone portions from separate segments that had not been played in
the courtroom. Given the strict standard of review in this matter, we decline to find
any plain error here that impacted Risner’s substantial rights. Therefore, her third
assignment of error is overruled.
Fourth Assignment of Error
{¶49} In her fourth assignment of error, Risner argues that the trial court
abused its discretion by denying her suppression motion as untimely without a
hearing.
Standard of Review
{¶50} A motion to suppress is a pre-trial motion. Crim.R. 12(C)(3). Criminal
Rule 12(D) provides that:
All pretrial motions except as provided in Crim.R. 7(E) and 16(M)
shall be made within thirty-five days after arraignment or seven
days before trial, whichever is earlier. The court in the interest of
justice may extend the time for making pretrial motions.
This Court has held that “failure to move for the suppression of evidence on the
basis that it was illegally obtained within Crim.R. 12(D)’s time limit constitutes a
waiver of the error.” State v. Perry, 3d Dist. Marion No. 9-12-09, 2012-Ohio-4656,
-21-
Case No. 13-19-03
¶ 12 citing State v. Campbell, 69 Ohio St. 3d 38, 44 (1994); Crim.R. 12(H).
“However, ‘the court for good cause shown may grant relief from the waiver.’ ” Id.
quoting Crim.R. 12(H).
{¶51} The trial court’s decision whether to permit leave to file an untimely
motion to suppress is within its sound discretion. State v. Monnette, 3d Dist. No. 9–
08–33, 2009–Ohio–1653, ¶ 17, citing Akron v. Milewski, 21 Ohio App. 3d 140, 142
(9th Dist.1985). Appellate review is, therefore, limited to whether the trial court
abused its discretion in rendering its decision. Id. A trial court will be found to
have abused its discretion when its decision is contrary to law, unreasonable, not
supported by the evidence, or grossly unsound. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
Analysis
{¶52} In this case, Risner filed a written not guilty plea on April 11, 2018.
Pretrial hearings were held on May 17, 2018, June 25, 2018, and July 30, 2018. It
was after these hearings, on August 6, 2018, that Risner filed her suppression motion
arguing, inter alia, that Trooper Fowler lacked a reasonable articulable suspicion to
stop her vehicle. She filed her suppression motion well outside of the 35 day
window provided in Crim.R. 12(D). Nevertheless, she argues that it should be
excused here because she did not have complete discovery until much later.
-22-
Case No. 13-19-03
{¶53} On appeal, Risner argues that although the record is not entirely clear
on when discovery was complete, it was not “complete” as of the June 25, 2018,
hearing.3 She then makes the assumption that discovery not being “complete”
indicated that she did not have the video from the incident to support her suppression
motion, and therefore she could not have filed the suppression motion.
{¶54} Contrary to her argument, the State filed its reply to request for
discovery on May 8, 2018, indicating that the DVD recording of the traffic offense
had been provided. (Doc. No. 9). Thus the record directly refutes her claim that
she did not have the video of the incident by June 25, 2018. On the basis of this
inaccuracy, the trial court was well within its discretion to deny the suppression
motion as untimely without a hearing. This is particularly true given that Risner
never even requested leave to file the untimely suppression motion.4
{¶55} Nevertheless, while Risner argues that a suppression motion would
have been dispositive in this matter, Risner was actually found guilty by the trial
court of failing to use a turn signal. Trooper Fowler testified, and the video
indicated, that Risner’s vehicle did not use a turn signal for one of her turns. Under
3
She bases this argument on a form that was filed indicating that a pretrial hearing had occurred and there
was a filing with a circle around discovery “has not been completed” at the time of that pretrial hearing.
(Doc. No. 14).
4
In her brief, Risner argues her case is similar to State v. Bryson, 5th Dist. Licking No. 16-CA-70, 2017-
Ohio-830, wherein the Fifth District found that a trial court abused its discretion by denying leave to file a
suppression motion when discovery was provided late by the State and the defendant promptly filed the
suppression motion afterward. The case sub judice is different, as discovery of the operative video had been
filed, according to the record.
-23-
Case No. 13-19-03
these circumstances, we could not find that the suppression motion would have been
dispositive because the officer did, in fact, have reasonable suspicion of a traffic
violation to conduct a traffic stop. State v. Rannes, 3d Dist. Logan No. 8-02-12,
2002-Ohio-4691 (“As the officer observed Rannes fail to use a left turn signal, he
permissibly stopped her motor vehicle [for a violation of R.C. 4511.39].”). For all
of these reasons Risner’s fourth assignment of error is overruled.
Fifth Assignment of Error
{¶56} In Risner’s fifth assignment of error, she argues that she received
ineffective assistance of trial counsel. Specifically, she contends that her counsel
was ineffective for failure to timely file a suppression motion in this matter.
Standard of Review
{¶57} “To establish a claim for ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4–16–
27, 28, 2017–Ohio–2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1–15–43,
2016–Ohio–3105, ¶ 11, citing State v. Jackson, 107 Ohio St. 3d 53, 2005–Ohio–
5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure
to make either showing defeats a claim of ineffective assistance of counsel. State v.
Bradley, 42 Ohio St. 3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no
reason for a court deciding an ineffective assistance of counsel claim to approach
-24-
Case No. 13-19-03
the inquiry in the same order or even to address both components of the inquiry if
the defendant makes an insufficient showing on one.”).
Analysis
{¶58} Risner argues here that she received ineffective assistance of counsel
for her attorney’s failure to file a timely suppression motion. Contrary to her
argument, we have already found that a suppression motion would not have been
dispositive in this matter. Trooper Fowler had reasonable suspicion to stop Risner’s
vehicle based on her failure to use a turn signal. See, e.g. State v. Rannes, 3d Dist.
Logan No. 8-02-12, 2002-Ohio-4691 (“As the officer observed Rannes fail to use a
left turn signal, he permissibly stopped her motor vehicle [for a violation of R.C.
4511.39].”) State v. Bizzell, 2d Dist. Montgomery No. 27676, 2017-Ohio-8902, ¶
17 (even where turn signal was actually activated, failure to do so within 100 feet
of stop sign was sufficient to initiate traffic stop); State v. Barnett, 7th Dist.
Mahoning No. 17 MA 0055, 2018-Ohio-2486, ¶ 28, citing State v. Foster, 1st Dist.
Hamilton No. 160424, 2017-Ohio-4036, ¶ 16 citing State v. Mays, 119 Ohio St. 3d
406, 2008-Ohio-4539 (“Even in the absence of probable cause, an officer may
initiate a traffic stop when the officer has reasonable and articulable suspicion that
a crime has been or is being committed.”). The filing of a timely suppression motion
would not have changed this fact, and thus would not have altered the outcome.
-25-
Case No. 13-19-03
Risner is therefore unable to demonstrate that she received ineffective assistance of
counsel, and her fifth assignment of error is overruled.
Sixth Assignment of Error
{¶59} In her sixth assignment of error, Risner argues that the cumulative
errors present in this case discussed in the previous assignments of error deprived
her of the right to a fair trial. As we have not found any errors in this case, let alone
numerous errors, this assignment of error is not well-taken, and it is overruled.
Conclusion
{¶60} For the foregoing reasons, Risner’s assignments of error are overruled
and the judgment of the Tiffin-Fostoria Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and PRESTON, J., concur.
/jlr
-26-