State v. Nichols

2023 Ohio 4364

• Court: Ohio Court of Appeals
• Decided: December 4, 2023
• Docket: 17-22-08
• Status: Published

Opinion

[Cite as State v. Nichols, 2023-Ohio-4364.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

STATE OF OHIO, CASE NO. 17-22-08

PLAINTIFF-APPELLEE,

v.

DARREN A. NICHOLS, OPINION

DEFENDANT-APPELLANT.

Appeal from Shelby County Common Pleas Court Trial Court No. 21CR000272

Judgment Affirmed

Date of Decision: December 4, 2023

APPEARANCES:

Samuel Saul Richardson for Appellant

Timothy S. Sell for Appellee Case No. 17-22-08

MILLER, P.J.

{¶1} Defendant-appellant, Darren A. Nichols (“Nichols”), appeals the June

28, 2022 judgment of the Shelby County Court of Common Pleas. For the reasons

that follow, we affirm the judgment of the trial court.

Background

{¶2} On August 27, 2021, Officer James Jennings (“Officer Jennings”) was

conducting traffic patrol when he observed a motorcycle pass him without a license

plate displayed. Officer Jennings attempted to initiate a traffic stop; however, the

motorcycle, driven by Nichols, failed to comply. A pursuit ensued which lasted

approximately 15 miles and reached speeds as high as 110 miles per hour. The

pursuit ended when Nichols’s motorcycle and Officer Jennings’s patrol vehicle

collided. First responders examining Nichols found a pouch of methamphetamine

in Nichols’s pants.

{¶3} On September 16, 2021, the Shelby County Grand Jury indicted

Nichols on four counts: Count One of failure to comply with an order or signal of a

police officer in violation of R.C. 2921.331(B), a third-degree felony; Count Two

of felonious assault in violation of R.C. 2903.11(A)(2), a first-degree felony; Count

Three of aggravated possession of drugs in violation of R.C. 2925.11(A), a third-

degree felony; and Count Four of vandalism in violation of R.C. 2909.05(B)(2), a

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fifth-degree felony. Nichols appeared for arraignment on November 1, 2021 where

he entered not guilty pleas.

{¶4} The parties exchanged discovery requests. On November 4, 2021,

Nichols filed a request for supplemental discovery. In his filing, Nichols requested

“any standard operating procedures or other internal guidance as to accepted norms

in chasing motorcycles that flee.” (Doc. No. 30). Nichols’s trial counsel indicated

that he previously sent an email to the State requesting the same and did not receive

a response. On March 15, 2022, Nichols filed a motion to compel discovery seeking

the trial court to compel the State to produce operating procedures relating to

pursuing fleeing motorcycles. The following day, the State filed its opposition to

Nichols’s motion to compel. The State specified that it did not believe the requested

information was relevant to any issue related to the instant charges. The State also

indicated that it sent a letter to defense counsel on November 10, 2021 requesting

information and case law supporting the defense’s position. Yet, it received no

response to its request. In a judgment entry filed on March 21, 2022, the trial court

denied Nichols’s motion to compel. The trial court stated that Nichols had not

demonstrated how the information he sought falls into the itemized categories of

Crim.R. 16 or how the information would have been be favorable to Nichols and

material to guilt or punishment.

{¶5} A jury trial commenced on May 10, 2022. Prior to the case being

submitted to the jury, the State dismissed Count Four (vandalism). The jury

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returned verdicts of guilty on Count One (failure to comply with an order or signal

of a police officer) and Count Three (aggravated possession of drugs), and not guilty

of Count Two (felonious assault). The court accepted the verdicts and ordered a

presentence evaluation.

{¶6} At the sentencing hearing held on June 27, 2022, the trial court

sentenced Nichols to 24 months in prison on Count One and 12 months in prison on

Count Three. The trial court ordered the sentences to run consecutively to each

other for an aggregate term of 36 months in prison. The trial court filed its judgment

entry of sentence on the following day.

{¶7} On September 12, 2022, Nichols filed his notice of appeal. He raises

two assignments of error for our review.

First Assignment of Error

The trial court erred in denying defense’s motion to compel discovery.

{¶8} In his first assignment of error, Nichols argues that the trial court erred

by denying his motion to compel discovery. Specifically, Nichols argues the trial

court erred by not requiring the State to produce “any standard operating procedures

or other internal guidance as to accepted norms in chasing motorcycles that flee.”

(Doc. No. 72).

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Standard of Review

{¶9} “We review a trial court’s decision on a motion to compel discovery

under an abuse of discretion standard.” State v. Wilkie, 3d Dist. Auglaize No. 2-17-

01, 2017-Ohio-1487, ¶ 28. An abuse of discretion implies the trial court acted

unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151,

157-158 (1980).

Relevant Law

{¶10} Crim.R. 16(B)(5) requires that, “[u]pon receipt of a written demand

for discovery by the defendant” the prosecuting attorney must disclose “[a]ny

evidence favorable to the defendant and material to guilt or punishment[.]” In

regulating the discovery process, Crim.R. 16(L)(1) provides that “[t]he trial court

may make orders regulating discovery not inconsistent with this rule.” “If at any

time during the course of the proceedings it is brought to the attention of the court

that a party has failed to comply with this rule or with an order issued pursuant to

this rule, the court may order such party to permit the discovery or inspection, grant

a continuance, or prohibit the party from introducing in evidence the material not

disclosed, or it may make such other order as it deems just under the circumstances.”

Id. “Prosecutorial violations of Crim.R. 16 are reversible only when there is a

showing that: (1) the prosecutor’s failure to disclose was a willful violation of the

rule; (2) knowledge of the information would have benefited the accused in the

preparation of the defense; and (3) the accused suffered some prejudicial effect.”

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State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 16, citing State

v. Joseph, 73 Ohio St.3d 450, 458 (1995).

{¶11} “Prosecutors have ‘a duty to learn of any favorable evidence known

to the others acting on the government’s behalf in the case, including the police.’”

(Emphasis sic.) State v. Sanders, 92 Ohio St.3d 245, 261 (2001), quoting Kyles v.

Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995). “Yet even so, in order to

invoke a right to disclosure, or a concomitant prosecutorial duty to search records,

a defendant must make a preliminary showing that the requested files actually

contain material, exculpatory information.” Id. “He ‘may not require the trial court

to search through [a state agency’s] file without first establishing a basis for his

claim that it contains material evidence.’” Id., quoting Pennsylvania v. Ritchie, 480

U.S. 39, 58, fn. 15, 107 S.Ct. 989, 1002 (1987).

Analysis

{¶12} Nichols alleges that the City of Sidney Police Department’s vehicle-

pursuit policy was relevant and would have aided his defense. Yet, Nichols failed

in both his discovery request and his motion to compel to provide the State or the

trial court with any argument to show that the requested vehicle-pursuit policy was

relevant or actually contained exculpatory material. Rather, Nichols submitted no

facts to the trial court or the State to indicate that exculpatory material existed in the

information Nichols sought to compel. On appeal, Nichols contends the vehicle-

pursuit policy was directly related to the jury’s finding that his operation of the

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motorcycle caused a substantial risk of serious physical harm and that his conduct

was more serious than conduct normally constituting the offense. Nichols offers no

explanation or legal support for this premise, and we find no connection between

the vehicle-pursuit policy and the substantial risk of serious physical harm or the

seriousness of Nichols’s conduct.

{¶13} Here, Nichols does not allege Officer Jennings lacked the authority to

initiate a traffic stop. Even assuming that the procedures and policy Nichols seeks

stated that Officer Jennings should have called off the pursuit at some point in the

interest of safety, the procedures and policy Nichols seeks do not control Nichols’s

conduct. Thus, any policy in place regarding vehicle-pursuit policies in chasing

motorcycles would not constitute a legal defense to failure to comply with an order

or signal of a law enforcement officer or aggravated possession of drugs. Any

protocol that law enforcement officers breached while pursuing Nichols’s

motorcycle once he decided to flee has no bearing on Nichols’s culpability for

failing to comply or possessing methamphetamine. Accordingly, the operating

procedures or internal guidance would not be relevant to Nichols’s defense. See

State v. Simonis, 3d Dist. Seneca No. 13-14-05, 2014-Ohio-5091, ¶ 40.

{¶14} Nichols contends that the information sought may have aided his trial

counsel in preparing for the trial or the sentencing hearing. However, “materiality

does not refer to defendant’s ability to prepare for trial.” State v. Owens, 3d Dist.

Marion No. 9-16-40, 2017-Ohio-2590, ¶ 29.

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{¶15} Accordingly, we do not find that the trial court abused its discretion

by denying Nichols’s motion to compel.

{¶16} Nichols’s first assignment of error is overruled.

Second Assignment of Error

The trial counsel was ineffective.

{¶17} In his second assignment of error, Nichols argues his trial counsel was

ineffective for: (1) failing to properly pursue the motion to compel discovery; (2)

failing to obtain the requested discovery through alternative means; and (3) failing

to question a witness regarding the information he sought in the motion to compel

discovery. For the reasons that follow, we disagree.

{¶18} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A

defendant asserting a claim of ineffective assistance of counsel must establish: (1)

counsel’s performance was deficient or unreasonable under the circumstances; and

(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d

303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052

(1984). In order to show counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

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prompted by reasonable professional judgment. Strickland at 689. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).

Tactical or strategic decisions, even if unsuccessful, do not generally constitute

ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989).

{¶19} Prejudice results when “‘there is a reasonable probability that, but for

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

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

{¶20} Nichols argues that his trial court was ineffective for (1) failing to

properly pursue the motion to compel discovery; (2) failing to obtain the requested

discovery through alternative means; and (3) failing to question a witness regarding

the information he sought in the motion to compel discovery. All three claimed

deficiencies relate back to the City of Sidney Police Department’s vehicle-pursuit

policy, a matter we addressed in detail in our analysis of Nichols’s first assignment

of error.

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{¶21} Nichols first argues his trial counsel was ineffective for failing to

properly pursue his motion to compel discovery. Nichols contends his trial counsel

did not argue with specificity how the requested information was relevant, including

with supporting case law. “A claim of ineffective assistance of trial counsel may

exist where the record shows that the defendant’s attorney failed to conduct a

reasonable investigation into a defendant’s case.” State v. Anders, 3d Dist. Hancock

No. 5-16-27, 2017-Ohio-2589, ¶ 66. “‘However, where proof outside the record is

required to support a claim of ineffective assistance of trial counsel, the claim is

“purely speculative and * * * ‘it is not appropriate for consideration on direct

appeal.’”’” Id., quoting State v. Kennard, 10th Dist. Franklin No. 15AP-766, 2016-

Ohio-2811, ¶ 23, quoting State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-

Ohio-3072, ¶ 5. However, as we noted in our analysis of Nichols’s first assignment

of error, the information that his trial counsel requested in the motion to compel was

not material or relevant to Nichols’s defense. Moreover, the record does not indicate

the information contained in the vehicle-pursuit policy would have been in any way

favorable to Nichols. Thus, Nichols’s argument is entirely speculative and, thus,

will not form the basis of a valid ineffective assistance of counsel claim. State v.

Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 31 (“speculation is

insufficient to establish the prejudice component of an ineffective assistance of

counsel claim”). Furthermore, to the extent Nichols argues the requested

information would be relevant to mitigating his punishment, we likewise find his

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argument speculative. State v. Riggleman, 5th Dist. Licking No. 16-CA-9, 2016-

Ohio-5179, ¶ 13. Nichols’s argument that his trial counsel was ineffective for

failing to obtain the requested discovery through alternative means also fails for

being wholly speculative. See State v. Keith, 79 Ohio St.3d 514, 534 (1997).

{¶22} Finally, we address Nichols’s argument that his trial counsel was

ineffective for failing to question Officer Jennings as to whether any vehicle-pursuit

policy exists. “‘The extent and scope of cross-examination clearly fall within the

ambit of trial strategy, and debatable trial tactics do not establish ineffective

assistance of [trial] counsel.’” State v. Cooperstein, 12th Dist. Warren No. CA2018-

09-117, 2019-Ohio-4724, ¶ 29, quoting State v. Leonard, 104 Ohio St.3d 54, 2004-

Ohio-6235, ¶ 146. Again, Nichols’s argument assumes the vehicle-pursuit policy

would be helpful to his defense, and is, thus, speculative. Had Nichols’s trial

counsel asked more questions, there is no indication that Officer Jennings’s answers

would have been helpful or resulted in not-guilty verdicts or a reduced sentence.

State v. Laws, 3d Dist. Allen No. 1-20-10, 2021-Ohio-166, ¶ 49.

{¶23} Furthermore, at trial, Nichols’s trial counsel did, in fact, question

Officer Jennings regarding different tactics law enforcement officers use when

engaged in a pursuit of a fleeing suspect. (May 10, 2022 Tr. at 168-170). Nichols’s

counsel also confirmed that Officer Jennings had authority and discretion to

terminate the pursuit if circumstances became too dangerous but, did not find the

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need to do so in his pursuit of Nichols. (Id. at 170-171). Accordingly, we find that

Nichols’s final argument also fails.

{¶24} Nichols’s second assignment of error is overruled.

Conclusion

{¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Shelby County Court

of Common Pleas.

WILLAMOWSKI and WALDICK, J.J., concur

/eks

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