State v. Anderson

2013 Ohio 2786

Opinion

[Cite as State v. Anderson, 2013-Ohio-2786.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26600

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE TINA F. ANDERSON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 09 2565

DECISION AND JOURNAL ENTRY

Dated: June 28, 2013

MOORE, Presiding Judge.

{¶1} Defendant-Appellant, Tina F. Anderson, appeals from her sentence and

conviction set forth in the July 16, 2012 judgment entry of the Summit County Court of

Common Pleas. We affirm.

I.

{¶2} On the evening of June 4, 2011, a black Jeep Cherokee was seen driving

erratically without its headlights on and repeatedly weaving into oncoming lanes of traffic on

West Market Street in Akron. Meredith Pavona, a concerned citizen, followed the Jeep and

flashed her headlights in order to get the driver’s attention, but the driver of the Jeep did not

respond. Another concerned citizen pulled up beside the Jeep on the passenger’s side and

appeared to say something, but the Jeep kept advancing without turning on its headlights. Ms.

Pavona then called 911. 2

{¶3} Officer Justin Herstich responded to the 911 call and stopped the Jeep at

approximately 9:30 p.m. in Fairlawn. Officer Mark Schlegel also arrived in a separate car as

back-up. The Officers learned that Ms. Anderson was driving the Jeep which was owned by her

daughter, Angela Anderson, who was in the front passenger’s seat.1 Officer Herstich asked Ms.

Anderson about her erratic driving and whether she had consumed any alcoholic beverages,

illicit drugs or prescribed medication. Ms. Anderson admitted to taking OxyContin and Xanax

earlier that day. Officer Herstich then had Ms. Anderson perform three field sobriety tests,

including the horizontal gaze nystagmus, one-legged stand, and walk-and-turn. Upon failing all

three tests, Ms. Anderson was placed under arrest.

{¶4} Prior to having the Jeep towed, Officer Schlegel took an inventory of the contents

of the vehicle. In doing so, he found several types of prescription medication inside a blue bag in

Ms. Anderson’s purse, as well as additional loose pills in the bottom of her purse. The pill

bottles inside of the blue bag had no legible markings on them with regard to patient name, date,

or doctor information. Officer Schlegel testified that Ms. Anderson admitted that the purse and

its contents belonged to her. Further, because Ms. Anderson claimed that she had prescriptions

for the pills found in her purse, the police allowed her three months to produce the prescriptions

before charging her with possession. The record indicates that Ms. Anderson failed to produce

any prescriptions.

{¶5} Ms. Anderson was indicted for aggravated possession of drugs, in violation of

R.C. 2925.11(A)(C)(1), possession of drugs, in violation of R.C. 2925.11(A)(C)(2), lanes of

travel/weaving, in violation of R.C. 4511.25, lighted lights and illuminating devices required, in

violation of R.C. 4513.03, and operating under the influence of alcohol or drugs, in violation of

1 Angela Anderson died prior to trial due to natural, unrelated causes. 3

R.C. 4511.19(A)(1)(a). The record indicates that Ms. Anderson pleaded not guilty to all charges,

and that, prior to trial, the State dismissed the charge of possession of drugs.

{¶6} The matter proceeded to trial and the jury issued a guilty verdict on the charges of

aggravated possession of drugs and operating under the influence of alcohol or drugs.

Additionally, the trial court found Ms. Anderson guilty of the traffic offenses.

{¶7} Ms. Anderson was sentenced to twenty-four months of community control, a

suspended driver’s license for a period of one-year, retroactive to May 31, 2012, a three-day

driver intervention program, and fines in the amount of $425.00.

{¶8} Ms. Anderson appealed, setting forth one assignment of error for our

consideration.

II.

ASSIGNMENT OF ERROR

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHICH SEVERELY DISADVANTAGED HIS CLIENT AND ADVERSELY IMPACTED THE OUTCOME OF THE TRIAL AND BUT FOR HIS POOR PERFORMANCE [MS. ANDERSON] WOULD NOT HAVE BEEN CONVICTED.

{¶9} In her sole assignment of error, Ms. Anderson argues that her trial counsel was

ineffective in the following ways: (1) failing to subpoena pharmacy records for Ms. Anderson

and her daughter, Angela Anderson, prior to trial, (2) failing to subpoena a pharmacist to

authenticate prescription records at trial, (3) failing to adequately cross-examine Officers

Herstich and Schlegel, and (4) failing to file a written motion for a new trial based upon newly

discovered evidence.

{¶10} To prevail on a claim of ineffective assistance of counsel, Ms. Anderson must

show (1) that counsel’s performance was deficient to the extent that “counsel was not 4

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but

for counsel’s deficient performance the result of the trial would have been different. 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. However, “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. Further, to establish prejudice,

Ms. Anderson 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 694.

{¶11} Here, Ms. Anderson first asserts that trial counsel should have subpoenaed

pharmacy records for both herself and her daughter, Angela Anderson, in order to show that

valid prescriptions existed for all medications found in the vehicle. However, this argument is

pure speculation because it presupposes that these prescriptions actually existed at the time of

Ms. Anderson’s arrest. “Thus, anything that would support such an assertion would necessarily

have to come from outside the record and could not be considered in this appeal.” State v.

Brooks, 9th Dist. No. 26437, 26352, 2013-Ohio-2169, ¶ 19, citing State v. Garfield, 9th Dist. No.

09CA009741, 2011-Ohio-2606, ¶ 59. As such, we cannot say that Ms. Anderson’s trial counsel

performed deficiently in this regard.

{¶12} Next, Ms. Anderson asserts that trial counsel should have subpoenaed a

pharmacist to authenticate printouts of her prescriptions that he attempted to submit into

evidence at trial. Again, we can only presuppose what a witness may have said if he or she were

called to testify about Ms. Anderson’s prescriptions at the time of her arrest. However, as stated 5

above, we cannot consider evidence dehors the record in this appeal. See Brooks at ¶ 20. We

note that the trial court allowed Ms. Anderson’s counsel to use the prescription printouts as an

aid to refresh her recollection during testimony. Additionally, Detective David Zampelli testified

that, during his investigation, he pulled an OARRS report through the Ohio automated

prescription reporting system in order to retrieve Ms. Anderson’s full prescription history, and it

did not show prescriptions for two of the drugs found in her purse. Therefore, even if we could

say that trial counsel performed deficiently by failing to subpoena a pharmacist, Ms. Anderson

was not prejudiced because the jury heard the testimony regarding her prescription history

through other sources.

{¶13} Ms. Anderson also asserts that trial counsel failed to adequately cross-examine

Officers Herstich and Schlegel regarding the location of the drugs in the vehicle. First, she

argues that, although Officer Herstich testified about the location of the drugs, he was not the

officer who searched the purse, and his testimony was inappropriate hearsay. Second, she argues

that there was a discrepancy between the police report and Officer Schlegel’s testimony

regarding the location of the drugs, and trial counsel only “briefly” questioned Officer Schlegel

about this alleged discrepancy. However, the State elicited testimony indicating that Officers

Herstich and Schlegel were standing next to each other when Officer Schlegel searched Ms.

Anderson’s purse, and that Officer Schlegel showed Officer Herstich the contents of the purse.

As such, Officer Herstich testified from personal knowledge that the drugs were found in Ms.

Anderson’s purse. Further, Officer Schlegel clarified, both on direct and cross-examination that,

although the police report states that the pills were found in a “blue bag in car,” the blue bag was

actually inside of Ms. Anderson’s purse, which was inside of the car. Trial counsel cross-

examined Officer Schlegel on this issue as follows: 6

***

Q. Is this the report that you generated?

A. Yes.

Q. All right. And would you take a look at that paragraph.

Q. Is it still your testimony that you recovered a blue bag from the purse, or was it somewhere else in the vehicle?

A. No. It was in the purse.

Q. [I]sn’t it true [the police report] also states that the blue bag was found in the vehicle? It doesn’t say it was in the purse?

A. It said [the blue bag] was in the car, and the purse obviously is in the car.

Q. [T]he blue bag and the pill bottles, you say, are found in the purse; but they are treated differently on the report and on the exhibits?

A. I just put them: In blue bag in car, blue bag in purse. I didn’t know at the time if I was going to be finding any other evidence. I had made it to the driver’s portion of the vehicle. But the blue bag was inside the purse.

(Emphasis added.) It is clear that trial counsel questioned Officer Schlegel on the issue of the

discrepancy and his answer did not change: the pills were found in a blue bag inside of Ms.

Anderson’s purse. We presume that trial counsel’s questioning of the Officers is based upon his

sound trial strategy, and, as such, we cannot say that his performance was deficient. See

Strickland at 689.

{¶14} Finally, Ms. Anderson asserts that, based on newly discovered evidence, trial

counsel should have made a request in writing for a new trial. The record indicates that at the

close of trial, Ms. Anderson’s counsel was handed a copy of a prescription allegedly matching 7

one of the drugs found in Ms. Anderson’s purse. At that time, trial counsel made an oral motion

for a new trial, stating, “[s]he handed me a prescription that neither the prosecutor nor myself

had seen up until, you know, ten minutes ago, and it was a prescription for one of the pills that

was on the BCI report.” The judge instructed him as follows:

Counsel, you will need to file a written motion for new trial, keeping in mind that the standards for the granting of a new trial will have something to do with the nature of the investigation that has been done prior to trial, and not only whether the evidence was, quote/unquote, “newly discovered,” but would have been discoverable through normal pretrial efforts.

Once again, the prescription in question is dehors the record and cannot be considered in this

appeal. See Brooks at ¶ 20. Notwithstanding the foregoing, it is impossible to know whether

after further examination, trial counsel might have realized that this prescription could have been

obtained through normal discovery efforts prior to trial. Crim.R. 33(A)(6) states that a new trial

may be granted on the motion of the defendant “[w]hen new evidence material to the defense is

discovered which the defendant could not with reasonable diligence have discovered and

produced at the trial.” As such, trial counsel may have made a strategic decision not to file a

written motion for a new trial. Therefore, based upon the limited record before us, we cannot

conclude that trial counsel’s performance was deficient in this regard.

{¶15} Accordingly, because we cannot conclude that trial counsel’s performance was

deficient, Ms. Anderson’s assignment of error is overruled.

III.

{¶16} In overruling Ms. Anderson’s sole assignment of error, the judgment of the

Summit County Court of Common Pleas is affirmed.

Judgment affirmed. 8

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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.

CARLA MOORE FOR THE COURT

WHITMORE, J. HENSAL, J. CONCUR.

APPEARANCES:

KAREN H. BROUSE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.