State v. Marriott

2021 Ohio 1404

• Court: Ohio Court of Appeals
• Decided: April 22, 2021
• Docket: 109339
• Status: Published

Opinion

[Cite as State v. Marriott, 2021-Ohio-1404.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109339 v. :

PATRICIA L. MARRIOTT, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 22, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-634136-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Timothy R. Troup and Eben McNair, Assistant Prosecuting Attorneys, for appellee.

Russell S. Bensing, for appellant.

LISA B. FORBES, J.:

Appellant, Patricia L. Marriott (“Marriott”), appeals her conviction

and sentence to three years in prison for aggravated vehicular assault and driving under the influence. After reviewing the pertinent law and facts of the case, we

affirm.

I. Facts and Procedural History

Marriott was charged in a three-count indictment that alleged that

she had driven intoxicated on October 26, 2018, when she struck two pedestrians

while they were crossing the street. Those charges were: aggravated vehicular

assault, a felony of the third degree in violation of R.C. 2903.08(A)(1)(a); assault,

a misdemeanor of the first degree in violation of R.C. 2903.13(A); and driving under

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

During the discovery phase of the case, Marriott sought introduction

of a report created by Henry Lipian. Lipian is an accident reconstructionist, and his

report concluded by stating:

A normally alert driver of the age of Ms. Marriott and under the weather and road conditions that existed at the time could not have avoided the crash. The pedestrians moved into the path of the Volkswagon [sic] in a short distance and over such a short time period that even a normally alert driver was eliminated from being able to avoid the crash. The primary cause of this crash was pedestrian actions including the conclusion that neither was in the crosswalk at the time of the FCP (First Contact Point), they were not reasonably discernible and suddenly moved into the path of a vehicle that was close enough to constitute an immediate hazard.

The state filed a motion in limine on September 10, 2020, seeking to

exclude Lipian’s testimony and the introduction of his report. In its motion, the

state argued that the report imputed contributory negligence onto the victims of the

accident and was therefore irrelevant and impermissible. The court granted the state’s motion in limine on September 20, 2019. Marriott filed a motion to

reconsider the court’s ruling on September 23, 2019, which was denied.

On September 23, 2019, Marriott entered guilty pleas to one count of

aggravated vehicular assault and one count of driving under the influence. The

current appeal followed.

II. Law and Argument

In Marriott’s sole assignment of error, she argues that she received

ineffective assistance of counsel when her trial counsel advised her to plead guilty

instead of no contest. Marriott asserts that, as a result of pleading guilty, she

forfeited her right to appeal the trial court’s decision granting the state’s motion in

limine regarding Lipian’s testimony and report.

To succeed on a claim of ineffective assistance of counsel, a defendant

must establish that his or her attorney’s performance was deficient, and that the

defendant was prejudiced by the deficient performance. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A court need not determine

whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies. Prejudice is

demonstrated by showing “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. The object of an ineffective assistance claim is not to grade

counsel’s performance. Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 3743 (1989). Marriott’s contentions are without merit. Whether she entered a plea

of guilty or no contest, the trial court’s ruling on a motion in limine would not be

reviewable. “‘[T]he denial of a motion in limine does not preserve a claimed error

for review in the absence of a contemporaneous objection at trial.’” State v.

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 59, quoting State

v. Hill, 75 Ohio St.3d 195, 203, 661 N.E.2d 1068 (1996). “[M]otions in limine do

not preserve issues for appeal because they are tentative, preliminary rulings about

an anticipated evidentiary issue and are subject to change during trial when the

issue is presented in its full context.” Bohl v. Aluminum Co. of Am., Inc., 8th Dist.

Cuyahoga No. 108584, 2020-Ohio-2824, ¶ 39, citing State v. Grubb, 28 Ohio St.3d

199, 203, 503 N.E.2d 142 (1986). Thus, a court’s ruling on a motion in limine is

only reviewable once the proponent of the evidence has attempted to present it at

trial. Orbit Elecs., Inc. v. Helm Instrument Co., 167 Ohio App.3d 301, 2006-Ohio-

2317, 855 N.E.2d 91, ¶ 17 (8th Dist.). In other words, a ruling on a motion in limine

is ordinarily not a final appealable order. Liebe v. Admin., 8th Dist. Cuyahoga

No. 100230, 2014-Ohio-1834, ¶ 9.

Marriott claims on appeal that, had she been advised to enter a plea

of no contest instead of guilty, this court would be able to review the trial court’s

ruling on the state’s motion in limine; therefore, she argues she was prejudiced by

her lawyer’s ineffective advice. We disagree.

Whether Marriott entered a plea of guilty or no contest would have

no bearing on whether this court could review the trial court’s interlocutory order granting the state’s motion in limine. Marriott did not go to trial. As a result, she

never presented at trial the evidence that had been the subject of the state’s motion

in limine. The issue of the admissibility of Lipian’s testimony and report was not

preserved for appeal.

Accordingly, Marriott cannot demonstrate prejudice and her sole

assignment of error is without merit.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

ANITA LASTER MAYS, P.J., and EILEEN A. GALLAGHER, J., CONCUR