State v. Smith , 2013 Ohio 3868 ( 2013 )

[Cite as State v. Smith, 2013-Ohio-3868.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 12CA0060
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHERYL C. SMITH WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. TRD-12-07-06369
DECISION AND JOURNAL ENTRY
Dated: September 9, 2013
HENSAL, Judge.
{¶1} Defendant-Appellant, Cheryl C. Smith, appeals from her conviction in the Wayne
County Municipal Court. For the following reasons, this Court affirms.
I.
{¶2} On June 29, 2012, Nicole Clegg was stopped at a red light at the intersection of
Cleveland and Portage Roads in Wooster, Ohio when she was struck from behind by another
vehicle. Clegg was driving a black Ford Thunderbird at the time, and she alleged that the vehicle
that hit her was a blue Chevrolet Cavalier with a gray bumper. Clegg testified that she asked the
female driver of the Cavalier for her contact information at least three times, which she refused
to provide her. After Clegg obtained the Cavalier’s license plate number from the front of the
vehicle, the driver drove away. Clegg called the Wooster police and provided them with the
license plate number, which was registered to a vehicle owned by Smith. The police
subsequently located Smith at a business about one-quarter of a mile from the collision.
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{¶3} Smith was cited for violations of Revised Code Section 4549.02 for failure to stop
after an accident and of Wooster Codified Ordinance 333.03(a) for failure to maintain an assured
clear distance. After a bench trial, she was convicted of both violations and sentenced to fines,
costs, and a six-month license suspension starting on the date of her conviction. Smith filed a
timely appeal and raises three assignments of error. This Court rearranges her assignments of
error to facilitate our review.
II.
ASSIGNMENT OF ERROR II
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT CHERYL SMITH
OF THE CRIMES ALLEGED.
{¶4} Smith argues in her second assignment of error that her conviction was not
supported by sufficient evidence. This Court disagrees.
{¶5} This Court reviews a question of whether there is sufficient evidence to support a
conviction de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency
requires a determination of whether the State has met its burden of production at trial.” State v.
Collmar, 9th Dist. Summit No. 26496, 2013-Ohio-1766, ¶ 7.
{¶6} Smith was convicted of violating Revised Code Section 4549.02(A), which
provides that:
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In case of accident to or collision with persons or property upon any of the public
roads or highways, due to the driving or operation thereon of any motor vehicle,
the person driving or operating the motor vehicle, having knowledge of the
accident or collision, immediately shall stop the driver’s or operator’s motor
vehicle at the scene of the accident or collision and shall remain at the scene of
the accident or collision until the driver or operator has given the driver’s or
operator’s name and address * * * together with the registered number of that
motor vehicle, to any person injured in the accident or collision or to the operator
* * * of any motor vehicle damaged in the accident or collision * * *.
She was also convicted of Wooster Codified Ordinance 333.03(a), which provides that:
No person shall operate a motor vehicle at a speed greater or less than is
reasonable or proper, having due regard to the traffic * * * and any other
conditions, and no person shall drive any motor vehicle in and upon any street or
highway at a greater speed than will permit the person to bring it to a stop within
the assured clear distance ahead.
{¶7} The record reflects that while Smith made a motion for acquittal pursuant to
Criminal Rule 29 at the close of the State’s case, she failed to renew that motion at the close of
her own case. Regardless, this Court will address her argument as we have previously held that
failure to renew a motion for acquittal does not waive appellate review of whether the evidence
was sufficient to sustain a conviction. State v. Thornton, 9th Dist. Summit No. 23417, 2007-
Ohio-3743, ¶ 14.
{¶8} Clegg testified at trial that she was stopped at a red light when she saw a blue
Chevrolet Cavalier with a gray bumper driven by a female, who she positively identified at trial
as Smith, approach her vehicle from behind. As Clegg waited for the light to change, Smith
collided with her, which caused an impact hard enough to move her forward in her seat so as to
lock the seatbelt, cause things to fall from the seat onto the floor, and cause her back, shoulder,
and neck to hurt. Clegg testified that she exited her vehicle and walked back to Smith’s vehicle.
Smith was talking on a cell phone, and would not acknowledge that Clegg was standing outside
her door. Clegg walked back to her car to get a pen and paper and approached Smith again.
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Smith denied that she hit Clegg, and refused to give Clegg her contact information. Clegg
walked to the front of Smith’s car to obtain her license plate number and asked Smith again for
her contact information. Smith again refused. According to Clegg, she asked Smith for her
information at least three times. Clegg got back in her car, called the police, and Smith drove
away.
{¶9} Lieutenant Gregory Bolek testified that he responded to a call about a hit/skip
accident. He met Clegg in the parking lot of a Cleveland Road business where she gave a
written statement. Using the license plate number Clegg obtained, Lieutenant Bolek was able to
locate Smith at a different Cleveland Road business approximately one-quarter of a mile away
from the accident scene. He described Smith as cooperative although “somewhat confused about
the details.” Smith denied that she collided with Clegg. Lieutenant Bolek took pictures and
measurements of damage on both cars. He testified that a mark in the center of Smith's front
bumper resembled damage on Clegg’s car. According to Lieutenant Bolek, there were
horizontal striations on both vehicles that matched up. The areas of damage on both cars were
approximately one and three-eighths inches wide and 21.5 inches in height from the ground.
Lieutenant Bolek testified that based on his visual observations and measurements, he believed
Smith hit Clegg.
{¶10} Smith argues that Clegg’s testimony was inconsistent and that the marks on the
vehicles were not the result of recent damage. A review of the trial transcript, however, indicates
that Smith’s argument is misplaced. Clegg testified that there was prior damage to her vehicle.
While identifying a photograph of her rear bumper, Clegg testified as follows:
Q: Now was that scratch on your vehicle, on June 29th, prior to driving it in
this particular incident[?]
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A: No[.] [T]here was a small scratch from a garage door * * * but the scratch
was not that bad and it was made worse after.
Smith’s testimony clearly indicates that she believes the scratch indicated in the photograph was
not there prior to the accident.
{¶11} Smith also points out certain portions of Lieutenant Bolek’s testimony in which
he referenced “damage [that] was older” that she contends pertains to her vehicle and supports
her position that there was no new damage to Clegg’s vehicle. A review of the trial testimony
cited by Smith reveals that the testimony she cites refers to Clegg’s vehicle and not her own. As
stated above, Clegg testified to the older damage. Smith further attacks Lieutenant Bolek’s
failure to measure the length of the marks on each car and to position the vehicles back-to-front
to line up the marks. His testimony, however, indicates that he did not line the vehicles up
because “that’s the reason for the measurements.” Also, despite not measuring the length of
each mark, Lieutenant Bolek did ascertain the width and distance from the ground of each mark,
which he testified led him to believe the cars collided.
{¶12} Viewing the evidence in a light most favorable to the prosecution, this Court
concludes there was sufficient evidence from which the court could have found that the State
proved beyond a reasonable doubt that Smith violated both Revised Code 4549.02 and Wooster
Codified Ordinance 333.03(a). The evidence offered by the State supports a conclusion that
Smith was travelling too fast down Cleveland Road when she did not have enough time to stop
so as to avoid a collision with Clegg’s vehicle. Clegg’s testimony further supports a conclusion
that Smith knew about the collision and left the scene without providing her information to
Clegg. Based on the foregoing, Smith’s second assignment of error is overruled.
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ASSIGNMENT OF ERROR III
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶13} In her third assignment of error, Smith contends that her conviction was against
the manifest weight of the evidence. This Court does not agree.
{¶14} To determine whether Smith’s conviction was against the manifest weight of the
evidence, this Court
must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether, in resolving conflicts
in evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the
greater amount of credible evidence produced in a trial to support one side over the other side.
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the manifest weight of the
evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s
resolution of the conflicting testimony.” Id.{¶15} Smith’s testimony at trial contradicted Clegg’s testimony. Smith testified that on
June 29, 2012, she was driving a 1998 Chevrolet Cavalier on Cleveland Road on her way to a
laundromat. According to Smith, she drove approximately 40 feet past the intersection with
Portage Road when a dark SUV stopped in front of her. Smith’s testimony conflicts with
Clegg’s, who stated that after the collision the next thing that happened is that she exited her
vehicle. Smith testified that a female exited the vehicle, approached her, and said that Smith hit
her car “back there.” Smith denied doing so, and the female kept “screaming at [her].” Smith
testified that the female never asked her for identification. Smith’s husband called her cell phone
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while the female was at the vehicle to see if she had reached her destination yet. Smith testified
that the female left the scene first, and Smith proceeded to the laundromat.
{¶16} While at the laundromat, Smith received a call on her cell phone from a police
officer, who was right outside. Smith testified that the same female who confronted her on
Cleveland Road came to the laundromat, but that she arrived driving a different vehicle than the
one she was driving on Cleveland Road. The female was driving a dark SUV on Cleveland Road
whereas she arrived at the laundromat in a Ford Thunderbird. Smith did not have any further
contact with the female while at the laundromat.
{¶17} Smith’s husband also testified at trial and contradicted Lieutenant Bolek’s
testimony regarding the damage to his wife’s vehicle. He testified that the bumper of Smith’s
vehicle is contoured, but that it also comes to a point. Contrary to Lieutenant Bolek’s testimony,
according to Mr. Smith, the mark reflected in the photograph of the Cavalier’s bumper is located
away from the point. Smith testified that the mark was not located at the tip of the point of the
bumper, but rather the top, and is recessed one to one and one-half inches from the tip.
{¶18} Based on this Court’s review of the record, we cannot conclude that the trial court
lost its way when it chose to believe that Smith failed to keep an assured clear distance, struck
the rear of Clegg’s vehicle, and left the scene without providing her contact information. As
there were no witnesses to the accident itself other than Smith and Clegg, the trial court had to
weigh their conflicting testimony coupled with the also conflicting testimony about the location
of the damage from Lieutenant Bolek and Mr. Smith. “[T]he weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of facts.” State v. Frazier, 9th Dist.
Summit No. 25654, 2012-Ohio-790, ¶ 56, quoting State v. Jackson, 86 Ohio App.3d 29, 32 (4th
Dist.1993). “This Court will not overturn the trial court’s verdict on a manifest weight of the
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evidence challenge only because the trier of fact chose to believe certain witnesses’ testimony
over the testimony of others.” State v. Brown, 9th Dist. Wayne No. 11CA0054, 2013-Ohio-
2945, ¶ 42. This Court’s review of the record does not suggest that this is the exceptional case
where the trier of fact clearly lost its way and the evidence weighs heavily against Smith’s
conviction. Otten, 33 Ohio App.3d at 340. Accordingly, Smith’s conviction was not against the
manifest weight of the evidence, and her third assignment of error is overruled.
ASSIGNMENT OF ERROR I
CHERYL SMITH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF U.S. CONST. AMEND. V, VI, XIV, AND OHIO CONST.
ART. 1, SEC. 10.
{¶19} Smith argues in her first assignment of error that she was denied the effective
assistance of counsel. This Court disagrees.
{¶20} In order to prove a claim of ineffective assistance of counsel, Smith must
demonstrate that counsel’s performance was deficient and that she was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). A “deficient
performance” is one that falls below an objective standard of reasonable representation. State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. To establish prejudice, a
defendant must show that “there exists a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different.” Id. at paragraph three of the syllabus.
“[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland at 689.
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{¶21} Smith contends that her counsel was ineffective when he failed to subpoena for
trial her insurance company claims representative who sent her a letter stating that the insurer
would not pay Clegg’s claim “due to insufficient evidence that [she] was involved in an auto
accident [with] her.” Smith argues that the claims representative’s testimony would have refuted
Lieutenant Bolek’s testimony regarding the physical evidence that suggested a collision.
{¶22} “The mere failure to subpoena witnesses is not a substantial violation of an
essential duty to a client in the absence of [a] showing that [the] testimony * * * would have
assisted the defense.” State v. Wallace, 9th Dist. Lorain No. 06CA008889, 2006-Ohio-5819, ¶
18, quoting Middletown v. Allen, 63 Ohio App.3d 443, 448 (12th Dist.1989). Smith’s argument
that the claims representative would have assisted her defense is based on speculation. The letter
does not reveal the scope of the insurer’s investigation, why the evidence was “insufficient” to
process Clegg’s claim, or if the claims representative was knowledgeable in accident
reconstruction. Based on the foregoing, Smith’s counsel was not ineffective for failing to
subpoena the claims representative.
{¶23} Smith also argues that her counsel was ineffective in his cross-examination of the
State’s witnesses. “[D]ecisions regarding cross-examination are within trial counsel’s discretion,
and cannot form the basis for a claim of ineffective assistance of counsel.” State v. Diaz, 9th
Dist. Lorain No. 04CA008573, 2005-Ohio-3108, ¶ 26. Furthermore, a review of the record
suggests that Smith’s defense was based on her contention that an accident never occurred.
Counsel’s cross-examination fit with the defense’s theory of the case. Accordingly, Smith’s
counsel did not render ineffective assistance of counsel during his cross-examination of the
State’s witnesses.
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{¶24} Smith next maintains that her counsel was ineffective for failing to object to the
admission of the State’s photo that depicted up close damage to Clegg’s rear bumper. She
argues that the photo was blurry, which magnified the striation marks present in the photo. “This
Court has consistently held that trial counsel’s failure to make objections is within the realm of
trial tactics and does not establish ineffective assistance of counsel.” State v. Guenther, 9th Dist.
Lorain No. 05CA008663, 2006-Ohio-767, ¶ 74, quoting State v. Bradford, 9th Dist. Summit No.
22441, 2005-Ohio-5804, ¶ 27. Further, Smith’s argument pertains more to the weight to be
given the photo rather than whether it was admissible. Assuming arguendo that counsel was
deficient in failing to object to the photo, Smith has failed to demonstrate how she was
prejudiced as a different photo that depicted the damage to Clegg’s car was also admitted into
evidence. This Court cannot say that Smith’s counsel was ineffective for failing to object to the
photograph.
{¶25} Finally, Smith argues that her counsel was ineffective when he failed to renew her
Criminal Rule 29 motion. As this Court held in Thornton, 2007-Ohio-3743, failure to renew a
Rule 29 motion does not preclude this Court’s review of whether a conviction is supported by
sufficient evidence. Id. at ¶ 13-14. See also State v. Brooks, 9th Dist. Medina No. 07CA0111-
M, 2008-Ohio-3723, ¶ 43 (“[T]he failure of * * * trial counsel to renew the motion for acquittal
pursuant to Crim.R. 29 did not constitute ineffective assistance of counsel.”).
{¶26} Based on the foregoing, Smith has failed to demonstrate that her trial counsel
rendered ineffective assistance. Her first assignment of error is overruled.
III.
{¶27} Smith’s assignments of error are overruled. The judgment of the Wayne County
Municipal Court is affirmed.
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Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
CLARKE W. OWENS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.