State v. Church

2023 Ohio 2107

Opinion

[Cite as State v. Church, 2023-Ohio-2107.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 23CA000001 JENNIFER CHURCH

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Cambridge Municipal Court, Case No. TRC2102541

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 26, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM H. FERGUSON CHANDRA L. FORSHEY ONTKO Cambridge Law Director 665 Southgate Parkway 150 Highland Avenue – Suite #2 Cambridge, Ohio 44725 Cambridge, Ohio 43725 Guernsey County, Case No. 23CA000001 2

Hoffman, P.J. {¶1} Defendant-appellant Jennifer L. Church appeals her convictions and

sentence entered by the Cambridge Municipal Court, on one count of operating a motor

vehicle while under the influence and one count of failure to control, following a bench

trial. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On June 11, 2021, Appellant was cited for operating a motor vehicle while

under the influence, in violation of R.C. 4511.19(A)(1)(A), a misdemeanor of the first

degree; and failure to control, in violation of R.C. 4511.202, a minor misdemeanor. She

was ordered to appear in Cambridge Municipal Court on June 16, 2021. Appellant failed

to appear and the trial court issued an order to appear. Appellant appeared on June 23,

2021, and entered a plea of not guilty to the charges. The trial court appointed Attorney

Matthew Mollica to represent Appellant. The matter was scheduled for bench trial on

August 11, 2021.

{¶3} Appellant filed a jury demand and the trial court converted the original trial

date to a pretrial conference. At the pretrial conference on August 11, 2021, counsel for

both parties advised the trial court discovery was complete, Appellant had rejected the

state’s formal plea offer, and had waived her right to a jury trial. The trial court scheduled

a bench trial for October 26, 2021. On the morning of trial, Attorney Mollica filed a motion

for continuance as Appellant had been in close contact with a friend who had tested

positive for COVID and Appellant was waiting for her own test results. The trial court

granted the continuance and scheduled a bench trial for November 17, 2021.

{¶4} Appellant failed to appear for trial on November 17, 2021. The trial court

issued a bench warrant. The warrant was returned on May 10, 2022. The case was Guernsey County, Case No. 23CA000001 3

reinstated and the matter rescheduled for trial on June 7, 2022. Attorney Mollica filed a

motion for continuance as he had a scheduling conflict with another matter. The trial court

granted the continuance and scheduled a bench trial on August 16, 2022. The parties

filed a joint motion to continue, which the trial court granted. The trial was rescheduled

until September 14, 2022. Attorney Mollica filed a motion for continuance on September

9, 2022, as Appellant had again been exposed to COVID and was unable to meet with

counsel to prepare for trial. The trial court granted the continuance and scheduled a bench

trial for September 21, 2022.

{¶5} Attorney Mollica filed a motion for continuance on September 21, 2022,

explaining Appellant’s husband had suffered a heart attack and was hospitalized. The

trial court rescheduled the bench trial for October 26, 2022. Appellant filed a motion for

a continuance on October 20, 2022, which the trial court granted. The matter was

rescheduled until December 7, 2022.

{¶6} At trial, Appellant stipulated she was intoxicated on the night of the offense

and such intoxication was sufficient to constitute impairment under R.C. 4511.19(A)(1)(a).

The state agreed with the stipulation, leaving the operation of the motor vehicle as the

sole issue for trial.

{¶7} Trooper Connor Nagel of the Ohio Highway Patrol testified he was on duty

the evening of June 11, 2021, when he was dispatched to a crash on State Route 660 in

Guernsey County, Ohio. Trooper Nagel arrived at the scene and found a vehicle which

had been driven through high water, spun out, and crashed into an embankment. Trooper

Nagel was not certain, but believed Appellant was in the driver’s seat of the vehicle when

he arrived. EMS personnel advised the trooper they had observed a man walking away Guernsey County, Case No. 23CA000001 4

from the scene prior to the trooper’s arrival. Appellant informed Trooper Nagel she was

driving the vehicle and the man walking away from the area was her husband. Trooper

Nagel asked Appellant numerous times if she was driving, and each time, she indicated

she was. The traffic crash witness statement, which Appellant completed at the time of

the incident, was admitted into evidence. Therein, Appellant admitted she was driving

the vehicle.

{¶8} Trooper Nagel indicated he attempted to make contact with Appellant’s

husband using the phone number Appellant had provided to him. However, he was

unable to reach Appellant’s husband and Appellant’s husband never called the trooper

back.

{¶9} On cross-examination, when asked if he believed Appellant might be lying

about who was driving to cover for someone, Trooper Nagel stated: “EMS personnel had

indicated that they thought the male may have been the driver. So I had asked her

numerous times and every time she indicated that she was the driver and not the male.”

Transcript of December 7, 2022 Bench Trial at 15.

{¶10} At the close of the state’s case-in-chief, Appellant made an oral Crim. R. 29

motion for acquittal. The trial court denied Appellant’s motion.

{¶11} Jamie Kathary testified on Appellant’s behalf. Kathary stated, while he was

visiting Appellant and her husband on June 11, 2021, the couple had a disagreement.

Kathary recalled Appellant’s husband was pretty upset and left the residence.

Approximately 45 minutes to an hour later, Kathary and Appellant learn Appellant’s

husband had been in an accident. Kathary and Appellant proceeded to the accident

scene. Appellant exited Kathary’s vehicle and approached the State Highway patrolman. Guernsey County, Case No. 23CA000001 5

Because a tow truck had not arrived at the scene, Kathary decided to get a flatbed truck

from his business. By the time he returned, the tow truck company had arrived. Kathary

did not speak to anyone, did not hear anything, and did not see anything.

{¶12} After hearing the evidence, the trial court found Appellant guilty of OMVI,

sentenced her to 30 days in Guernsey County Jail with 27 days suspended, and imposed

a fine of $375, plus court costs. Appellant was permitted to attend a 72-hour alcohol

program in lieu of the 3 days in jail. The trial court placed Appellant on probation for a

period of twelve months, issued a 12-month license suspension, ordered her to complete

a substance use assessment and follow all recommendations. The trial court also found

Appellant guilty of failure to control and imposed a fine of $50, plus court costs.

{¶13} It is from these convictions Appellant appeals, raising as her sole

assignment of error:

THE APPELLANT HAS A CLAIM FOR INEFFECTIVE ASSISTANCE

OF COUNSEL AS TRIAL COUNSEL FAILED TO REQUEST A

CONTINUANCE OF THE HEARING TO CALL DEFENDANT’S HUSBAND

AS A WITNESS.

I

{¶14} In her sole assignment of error, Appellant raises a claim of ineffective

assistance of counsel. Specifically, Appellant contends trial counsel was ineffective for

failing to move for a continuance of the bench trial in order to secure Appellant’s husband

as a witness in her defense. Guernsey County, Case No. 23CA000001 6

{¶15} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). In order to prevail on a claim of ineffective

assistance of counsel, an appellant must show counsel's performance fell below an

objective standard of reasonable representation and, but for counsel's error, the result of

the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). In other words, an appellant must show counsel's conduct so undermined the

proper functioning of the adversarial process the proceedings cannot be relied upon as

having produced a just result. Id. In determining whether counsel's representation fell

below an objective standard of reasonableness, judicial scrutiny of counsel's performance

must be highly deferential. Bradley at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any given

case, a strong presumption exists counsel's conduct fell within the wide range of

reasonable professional assistance. Id.

{¶16} In order to warrant a reversal, an appellant must additionally show he was

prejudiced by counsel's ineffectiveness. “Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel.” State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995), citing Lockhart

v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The United States

Supreme Court and the Ohio Supreme Court have held a reviewing court “need not

determine whether counsel's performance was deficient before examining the prejudice Guernsey County, Case No. 23CA000001 7

suffered by the defendant as a result of the alleged deficiencies.” Bradley at 143, quoting

Strickland at 697.

{¶17} Assuming, arguendo, trial counsel was ineffective for failing to request a

continuance in order to ensure Appellant’s husband was available to testify at trial, we

find Appellant failed to establish, “but for counsel's error, the result of the proceedings

would have been different.” Strickland, supra. There is nothing in the record to remotely

suggest had trial counsel so moved, the trial court would have granted an eighth

continuance, and, even if the trial court had, whether the trial court would have believed

the testimony of Appellant’s husband, if he would have testified he was the driver of the

vehicle. Appellant’s argument as to what her husband would have testified to is purely

speculative.

{¶18} At trial, Trooper Nagel testified he asked Appellant numerous times who

was driving the vehicle and, each time, Appellant responded she was the driver. When

Trooper Nagel specifically asked Appellant if she was lying about being the driver to cover

for someone, Appellant responded, “No, I was driving.” Tr. at 11. On the other hand,

Jamie Kathary testified he was visiting Appellant and her husband on June 11, 2021.

After Appellant and her husband had a disagreement, Appellant’s husband left the

residence. Kathary explained, approximately 45 minutes later, Appellant’s husband

returned and stated he had crashed their vehicle. The trial court clearly believed the

testimony of Trooper Nagel over the testimony of Jamie Kathary. It is not reasonably

probable the testimony of Appellant’s husband would have swayed the trial court to

conclude Appellant was not the driver. Guernsey County, Case No. 23CA000001 8

{¶19} Appellant’s sole assignment of error is overruled.

{¶20} The judgment of the Cambridge Municipal Court is affirmed.

By: Hoffman, P.J. Wise, J. and King, J. concur