[Cite as State v. Ruppen, 2012-Ohio-4234.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA22 : vs. : Released: August 28, 2012 : MELINDA A. RUPPEN, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:
Mark W. Evans, The Law Office of Mark W. Evans, Ltd., Cincinnati, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Raymond E. Dugger, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee. _____________________________________________________________
McFarland, J.:
{¶1} This is an appeal from a Washington County Common Pleas
Court judgment of conviction and sentence, which resulted from a jury
verdict finding Appellant, Melinda Ruppen, guilty of possession of drugs, a
fifth degree felony in violation of R.C. 2925.11(A) & (C)(4)(a). On appeal,
Appellant contends that 1) the trial court committed reversible error when it
admitted irrelevant and highly prejudicial testimonial and videotape
evidence of other acts, crimes or wrongs in violation of the Ohio Rules of Washington App. No. 11CA22 2
Evidence; 2) Appellant’s conviction for possession of drugs is against the
manifest weight of the evidence as the greater weight of the evidence
indicates that Ms. Ruppen did not knowingly possess trace amounts of
cocaine residue; and 3) Appellant was denied her rights under the United
States and Ohio Constitutions to the effective assistance of counsel when her
trial counsel failed to timely file a motion to suppress, failed to object with
sufficient specificity to inadmissible evidence, and failed to timely object to
inadmissible testimony.
{¶2} With respect to Appellant’s first assignment of error, we find no
abuse of discretion or plain error in the admission of evidence of Appellant’s
false statements regarding her identity, or the admission of evidence
indicating her possession of other drugs and paraphernalia, in addition to
those related to the crime charged. Further, we find that any error by the
trial court related to the admission of statements made by Appellant
indicating she had prior incarcerations was harmless error. As such,
Appellant’s first assignment of error is overruled.
{¶3} With respect to Appellant’s second assignment of error, because
the evidence presented at trial would permit a rational trier of fact to find
beyond a reasonable doubt that Appellant knowingly possessed the cocaine
found in the vehicle, we cannot conclude that Appellant’s conviction was Washington App. No. 11CA22 3
against the manifest weight of the evidence. As such, Appellant’s second
assignment of error is overruled. With respect to Appellant’s third
assignment of error, because Appellant has failed to demonstrate that the
outcome of the trial would have been different but for the alleged errors or
deficiencies of trial counsel, she has suffered no prejudice. Thus, we cannot
conclude that she received ineffective assistance of counsel and we therefore
overrule Appellant’s third and final assignment of error.
{¶4} Having found no merit to any of Appellant’s assignments of
error, the decision of the trial court is affirmed.
FACTS
{¶5} On December 16, 2010, Appellant, Melinda Ruppen, was
indicted for possession of drugs (cocaine), a fifth degree felony in violation
of R.C. 2925.11(A) & (C)(4)(a), stemming from a traffic stop in
Washington County. The State agrees with the facts, as set forth in
Appellant’s brief, which are essentially as follows:
{¶6} On July 31, 2010, Trooper Lehman stopped Appellant’s vehicle
for a safety restraint violation1 as it was traveling southbound on I-77 in
Washington County. Trooper Lehman asked Appellant for identification
and she responded that she did not have any, but then provided the trooper
1 We note that a review of the dashcam video indicates Appellant was initially stopped for an equipment violation, specifically, failure to display a front license plate. Washington App. No. 11CA22 4
with the name of Kristen Ruppen, and birth date in the year 1983.
Appellant’s male passenger also provided the trooper his name and birth
date.
{¶7} Trooper Lehman claimed Appellant was nervous, and that when
he went back to his patrol vehicle to look up the information provided to
him, he discovered Kristin Ruppen had a birth date of 1982. As a result, he
asked Appellant to come back to his vehicle and he placed her in the
backseat. When asked about her birth date again, Appellant stated it was
1982. Trooper Lehman then requested the assistance of a K-9 officer. After
obtaining a photo of Kristen Ruppen, Trooper Lehman confronted
Appellant, who then admitted that she lied about her identity, claiming to
have an outstanding seat belt ticket.
{¶8} After the K-9 officer, Trooper Hickey, arrived at the scene, the
troopers removed the male passenger from the vehicle, placed him in the
backseat of the patrol vehicle with Appellant, and then the K-9 dog sniffed
the exterior of Appellant’s vehicle. Trooper Hickey testified that the dog
indicated the presence of narcotics on the passenger and driver side of the
vehicle. Trooper Lehman then began a search of the vehicle, which yielded
a bag of marijuana, muscle relaxers that were not a controlled substance, a
cigarette pack with some filters in it, and a small, purple plastic container Washington App. No. 11CA22 5
that contained cocaine residue, all of which were located in Appellant’s
purse. Trooper Lehman testified that when he took the container to
Appellant and asked her what it contained, she acknowledged it was hers
and admitted that it contained “crumbs of coke.” At trial, criminalist
Heather Sheskey testified that she tested the residue recovered from the
plastic container and that it tested positive for cocaine, which weighed less
than 0.1 gram.
{¶9} After hearing the evidence and viewing the dashcam video of the
entire stop and search,2 the jury found Appellant guilty of possession of
drugs, specifically, cocaine. Appellant was sentenced by journal entry dated
August 5, 2011, and it is from this entry that Appellant now brings her
timely appeal, assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ADMITTED IRRELEVANT AND HIGHLY PREJUDICIAL TESTIMONIAL AND VIDEOTAPE EVIDENCE OF OTHER ACTS, CRIMES, OR WRONGS IN VIOLATION OF THE OHIO RULES OF EVIDENCE.
2 As will be discussed more fully infra under Appellant’s first assignment of error, Appellant filed a motion in limine on the morning of trial, requesting the court to exclude evidence that Appellant was in possession of marijuana, paraphernalia, muscle relaxers, and lied to the officer about her identity, claiming that such information had little probative value, was outweighed by its prejudicial effect, and was not relevant to whether Appellant knowingly possessed cocaine. Appellant further moved to exclude the end of the video, due to Appellant’s statements about a prior incarceration. The trial court denied the motion, but agreed to give a limiting instruction instructing the jury only to consider those parts of the tape relevant to the possession charge. Washington App. No. 11CA22 6
II. MS. RUPPEN’S CONVICTION FOR POSSESSION OF DRUGS IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE GREATER WEIGHT OF THE EVIDENCE INDICATES THAT MS. RUPPEN DID NOT KNOWINGLY POSSESS TRACE AMOUNTS OF COCAINE RESIDUE.
III. MS. RUPPEN WAS DENIED HER RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS TO THE EFFECTIVE ASSISTANCE OF COUNSELWHEN HER TRIAL COUNSEL FAILED TO TIMELY FILE A MOTION TO SUPRESS, FAILED TO OBJECT WITH SUFFICIENT SPECIFICITY TO INADMISSIBLE EVIDENCE, AND FAILED TO TIMLY [SIC] OBJECT TO INADMISSIBLE TESTIMONY.”
ASSIGNMENT OF ERROR I
{¶10} In her first assignment of error, Appellant contends that the trial
court committed reversible error when it admitted irrelevant and highly
prejudicial testimonial and videotape evidence of other acts, crimes, or
wrongs in violation of the Ohio Rules of Evidence. Specifically, Appellant
contends that portions of the dashcam video shown to the jury, as well as
testimony by the arresting officer, contained highly prejudicial evidence that
was irrelevant to the charged crime, possession of drugs.
{¶11} The record reveals that this issue was the subject of a motion in
limine filed the morning of trial, which was denied by the trial court, partly
based upon reasons of judicial economy due to the untimeliness of the filing,
and also based upon the trial court’s decision that the evidence at issue was
relevant and admissible. The State’s brief on appeal does not address the Washington App. No. 11CA22 7
merits of Appellant’s assignment of error, other than to state that a ruling on
a motion in limine is not appealable. “A motion in limine is a prospective
order and makes no determination as to the ultimate admissibility of the
evidence.” Rowan v. City of Tallmadge, 9th Dist. No. 16876, 1995 WL
569114 (Sept. 27, 1995); citing Krosky v. Ohio Edison Co., 20 Ohio App.3d
10, 14, 484 N.E.2d 704 (1984). “ ‘An order in limine, therefore is a
preliminary ruling and is not a basis for error on appeal. This court’s
review, therefore, will not encompass an alleged violation of an in limini
order, but the ultimate ruling made during trial when the matter presented
itself for evidentiary ruling.’ ” Rowan; citing Regec v. Johnson, 9th Dist. No.
CA15838, 1993 WL 89700 (Mar. 31, 1993).
{¶12} Thus, we turn our attention to whether the trial court properly
admitted the evidence at issue during the trial of the matter, not whether it
properly ruled on the motion in limine. “A trial court has broad discretion in
the admission or exclusion of evidence, and so long as such discretion is
exercised in line with the rules of procedure and evidence, its judgment will
not be reversed absent a clear showing of an abuse of discretion with
attendant material prejudice to defendant.” State v. Green, 184 Ohio App.3d
406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14; citing State v. Powell, 177
Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33. Abuse of Washington App. No. 11CA22 8
discretion is more than an error of law or judgment; rather, it implies that the
court's attitude is unreasonable, arbitrary or unconscionable. State v.
Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 762 N.E.2d 940; State v.
Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When an appellate
court applies this standard, it must not substitute its judgment for that of the
trial court. State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672, ¶ 12; In
re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991); citing
Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
{¶13} Further, Evid. R. 403(A) provides that relevant evidence is not
admissible if its probative value is substantially outweighed by the danger of
unfair prejudice, of confusion of the issues, or of misleading the jury. “The
trial court has broad discretion in balancing the probative value against the
danger of unfair prejudice, and its determination will not be disturbed on
appeal absent a clear abuse of discretion.” State v. Reeves, 2nd Dist. No.
16987, 1999 WL 129469, * 7 (Mar. 12, 1999).
{¶14} Here, Appellant primarily challenges the admission of evidence
that 1) she lied to Trooper Lehman concerning her identity during the traffic
stop; 2) she admitted possession of unrelated drugs and drug paraphernalia;
and 3) she had twice been to jail before. Appellant argues that this evidence
1) was not relevant; 2) was inadmissible under the general prohibition of Washington App. No. 11CA22 9
character evidence; and 3) that even if the evidence was relevant, the danger
of its prejudicial effect on the jury substantially outweighed its probative
value. Appellant further argues that the error in the admission of this
evidence cannot be considered harmless error, citing the “lack of other
substantial incriminating evidence,” and references the argument raised
under her second assignment of error, which contends her conviction was
against the manifest weight of the evidence.
EVIDENCE OF APPELLANT’S LIE TO TROOPER LEHMAN
CONCERNING HER IDENTITY
{¶15} Appellant claims that evidence she lied to Trooper Lehman
concerning her identity was not relevant to the commission of the crime for
which she was convicted, and that even if relevant, it should not have been
admitted because the danger of unfair prejudice outweighed its probative
value. This evidence was admitted in two ways, 1) trooper testimony, which
was not objected to during trial, and 2) the videotape evidence, which was
objected to by counsel. Because Appellant’s counsel failed to object to its
admission at trial via the testimony of the trooper, we review the admission
of this evidence under a plain error standard.
{¶16} Under Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the Washington App. No. 11CA22 10
attention of the court .” For a reviewing court to find plain error, the
following three conditions must exist: 1) an error in the proceedings; 2) the
error must be plain, i.e., the error must be an “obvious” defect in the trial
proceedings; and 3) the error must have affected “substantial rights,” i.e., the
trial court's error must have affected the outcome of the trial. See, e.g., State
v. Noling, 98 Ohio St.3d 44, 56, 2002-Ohio-7044, 781 N.E.2d 88; State v.
Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; State v.
Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001); State v. Hill, 92
Ohio St.3d 191, 200, 749 N.E.2d 274 (2001).
{¶17} Furthermore, the Supreme Court of Ohio has stated that
Crim.R. 52(B) is to be invoked “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v.
Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990); see, also, State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus
(1978). A reviewing court should consider noticing plain error only if the
error “ ‘ “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” ’ ” Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240;
quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770 (1993);
quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391 (1936). Washington App. No. 11CA22 11
{¶18} Initially, we note that we agree with the trial court’s
determination that the admission of this evidence was relevant, as it
indicated to the jury that Appellant had something to hide, and it also
established the basis for the drug dog to be called and for the investigation to
continue. Thus, we reject Appellant’s argument that this evidence was not
relevant to the crime for which she was ultimately convicted.
{¶19} Further, in light of Appellant's identification of the recovered
drugs as “crumbs of coke,” coupled with her admission that they belonged to
her, we believe that the evidence indicating she lied to the trooper, while
likely prejudicial to Appellant, did not seriously affect the fairness of the
judicial proceedings. State v. Moon, 4th Dist. No. 08CA875, 2009-Ohio-
4830, ¶ 43. As we will discuss further under Appellant’s second assignment
of error, substantial evidence supports her conviction. As such, any error
associated with the admission of this evidence did not affect the outcome of
the proceedings and does not, therefore, rise to the level of plain error. Id.
EVIDENCE OF APPELLANT’S PRIOR INCARCERATION AND
OTHER CONTRABAND FOUND IN HER VEHICLE.
{¶20} Appellant contends that the admission of her statements caught
on video regarding the fact that she had had prior incarcerations, as well as
the admission of evidence that other drugs and paraphernalia were recovered Washington App. No. 11CA22 12
from her vehicle, constituted inadmissible character evidence. She further
contends that this evidence was not relevant, and that the only purpose of the
evidence was “to demonstrate that [she] acted in conformity with the
underlying charged crime.”
{¶21} As Appellant objected to the admission of this evidence at trial,
we revert to the abuse of discretion standard. As we set forth above, while
we are mindful that relevant evidence is only admissible under Evid.R.
403(A) if its probative value is not outweighed by the danger of unfair
prejudice, “[t]he trial court has broad discretion in balancing the probative
value against the danger of unfair prejudice, and its determination will not be
disturbed on appeal absent a clear abuse of discretion.” State v. Reeves,
supra.
{¶22} We again reject Appellant’s assertion that the evidence at issue
is not relevant. Evid.R. 404 provides in section (B) that while “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
(Emphasis added). The fact that Appellant, at the time of her traffic stop,
was also in possession of other drugs and paraphernalia certainly is relevant Washington App. No. 11CA22 13
to whether she also knowingly possessed cocaine. As such, we conclude
that this evidence was admissible under Evid.R. 404(B), and that the trial
court did not abuse its discretion in allowing it to be admitted.
{¶23} However, we agree with Appellant that admission of her
statements regarding her prior incarcerations were not admissible. We note,
however, that upon reviewing the entire dashcam video, we were unable to
discern any statements by Appellant indicating prior incarcerations. The
trial transcript indicates that these statements occurred 47 minutes into the
video, but we were unable to hear anything on the audio indicating such a
statement. Further, although the trial court denied the motion in limine,
during the playing of the video during the trial, the prosecution agreed to
stop the tape after Appellant’s confession. Thus, the portion of the video
after the confession which contains statements regarding prior incarcerations
was not played for the jury.
{¶24} Nonetheless, even assuming that these statements were audible
on the video, and that the jury heard them, as explained above, because
Appellant’s conviction was otherwise supported by substantial evidence,
which included Appellant’s own admission to owning the cocaine recovered
from her vehicle, Appellant cannot show that she was materially prejudiced
by the admission of this evidence. Thus, even assuming that the trial court Washington App. No. 11CA22 14
erred and abused its discretion, particularly in the admission of the
statements regarding Appellant’s prior convictions, such admission was
harmless error. Accordingly, Appellant’s first assignment of error is
overruled.
ASSIGNMENT OF ERROR II
{¶25} In her second assignment of error, Appellant contends that her
conviction for possession of drugs is against the manifest weight of the
evidence, arguing that the greater weight of the evidence indicates that she
did not knowingly possess trace amounts of cocaine residue. The State
counters by arguing that the drugs were found pursuant to a legal search
conducted after a valid traffic stop, and that once the drugs were found,
Appellant admitted they belonged to her.
{¶26} “When an appellate court considers a claim that a conviction is
against the manifest weight of the evidence, the court must dutifully
examine the entire record, weigh the evidence, and consider the credibility
of witnesses. The reviewing court must bear in mind, however, that
credibility generally is an issue for the trier of fact to resolve.” State v.
Puckett, 191Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 32;
citing State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus Washington App. No. 11CA22 15
(1967). “If the prosecution presented substantial evidence upon which the
trier of fact reasonably could conclude, beyond a reasonable doubt, that the
essential elements of the offense had been established, the judgment of
conviction is not against the manifest weight of the evidence.” State v.
Puckett at ¶ 33; citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132,
syllabus (1978), (superseded on other grounds). We will reverse a conviction
only in the “exceptional” case where the evidence weighs heavily against the
conviction and it appears that the fact-finder, when resolving conflicts in the
evidence, “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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 54 (1997); quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶27} R.C. 2925.11(A) provides that “[n]o person shall knowingly
obtain, possess, or use a controlled substance.” The jury found Appellant
guilty of the (C)(4)(a) subsection, which defines possession of “cocaine or a
compound, mixture, or preparation, or substance containing cocaine” as a
felony of the fifth degree. “Possession of a drug may be either actual
physical possession or constructive possession.” State v. Pullen, 2nd Dist.
No. 24620, 2012-Ohio-1858, ¶ 36; citing State v. Butler, 42 Ohio St.3d 174,
538 N.E.2d 98 (1989). “A person has constructive possession of an item Washington App. No. 11CA22 16
when he is conscious of the presence of the object and able to exercise
dominion and control over that item, even if it is not within his immediate
physical possession.” Pullen at ¶ 36; citing State v. Hankerson, 70 Ohio
St.2d 87, 434 N.E.2d 1362 (1982).
{¶28} “In determining whether a defendant knowingly possessed a
controlled substance, it is necessary to examine the totality of the facts and
circumstances surrounding its discovery.” Pullen at ¶ 37; citing State v.
Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998); State v. Pounds,
2nd Dist. No. 21257, 2006-Ohio-3040. Here, Appellant does not challenge
the validity of the traffic stop, or the subsequent search that was conducted.
Rather, she limits her argument on appeal to the contention that she “did not
knowingly possess cocaine at the time at which she had either actual or
constructive possession of it.” She premises her contention on an argument
that because the amount of the cocaine was so small that it could not be
weighed, that she could not have “knowingly” possessed it. Thus, Appellant
essentially challenges the trial court’s finding that she “knowingly”
possessed cocaine, as required by R.C. 2925.11(A).
{¶29} In State v. Teamer, supra at 491, the Supreme Court of Ohio
considered the certified issue of “whether the amount [of the controlled Washington App. No. 11CA22 17
substance] is a factor in determining the crime of drug abuse.”3 The Court
ultimately held that “[t]he quantity of a controlled substance is not a factor in
determining whether a defendant may lawfully be convicted of drug abuse,
in violation of R.C. 2925.11(A)” Id. at syllabus. In reaching this decision,
the Court reasoned that “the unambiguous language of R.C. 2925.11
punishes conduct for the possession of any amount of a controlled
substance.” Id. at 491. The Court further found that “[a]s long as there is
scientifically accepted testimony from which a factfinder could conclude
beyond a reasonable doubt that a controlled substance was present, a
conviction for drug abuse pursuant to R.C. 2925.11(A) will not be reversed
based upon the amount of contraband involved.” Id. at 492.
{¶30} The relevant and probative evidence introduced by the State
included: 1) Appellant’s inculpatory statements made on video, and to the
troopers after the drugs were found, in which she identified the drugs as
cocaine and admitted they belonged to her; and 2) the testimony of the
trooper who found the cocaine in Appellant’s purse, which was located in
the vehicle from which Appellant was removed; and 3) the testimony of the
criminologist, who confirmed that the substance at issue was cocaine.
3 Although Teamer focused on “drug abuse” rather than “possession of drugs,” we find the reasoning and holding to be applicable to “possession of drugs,” which is at issue sub judice. Washington App. No. 11CA22 18
{¶31} After reviewing the record before us, we cannot conclude that
this is one of the exceptional cases where the evidence weighs heavily
against the jury verdict. When viewed in light most favorable to the
prosecution, and in light of the reasoning of Teamer, this combination of
direct and circumstantial evidence clearly permits a rational trier of fact to
find beyond a reasonable doubt that Appellant knowingly possessed the
cocaine found in the vehicle. Further, we simply reject Appellant’s assertion
that because she denied having possession of any illegal substances
throughout the duration of the search, and only admitted to owning them
after they were found, that she did not “knowingly” possess cocaine.
Accordingly, Appellant’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
{¶32} In her third assignment of error, Appellant contends that she
was denied her right to the effective assistance of counsel when her trial
counsel failed to timely file a motion to suppress, failed to object with
sufficient specificity to inadmissible evidence, and failed to timely object to
inadmissible testimony. The State responds by arguing that there is nothing
to indicate that a successful motion to suppress would have changed the
outcome of the jury’s guilty finding, and that the properly admitted Washington App. No. 11CA22 19
testimony of the trooper and criminologist alone was more than sufficient for
the jury to have found Appellant guilty beyond a reasonable doubt.
{¶33} In order to prove a claim of ineffective assistance of counsel, a
defendant must show that his counsel's performance was deficient, i.e., not
reasonably competent, and that counsel's deficiencies prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus
(1989). When considering whether trial counsel's representation amounts to
deficient performance, “a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance.” Strickland at 689. Thus, “the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Id.
{¶34} To establish prejudice, a defendant must demonstrate that a
reasonable probability exists that but for counsel's errors, the result of the
trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693
N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373,
paragraph three of the syllabus (1989). Furthermore, courts should not
simply assume the existence of prejudice, but require that it be affirmatively
shown. See State v. Hairston, 4th Dist. No. 06CA3089, 2007-Ohio-3707, ¶ Washington App. No. 11CA22 20
16; citing State v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-1707, ¶ 22;
State v. Tucker, 4th Dist. No. 01CA2592, 2002 Ohio-1597; State v. Kuntz, 4th
Dist. No. 1691, 1992 WL 42774 (Feb. 26, 1992). If one prong of the
Strickland test disposes of a claim of ineffective assistance of counsel, we
need not address both aspects. State v. Martin, 4th Dist. No. 06CA3110,
2007-Ohio-4258, ¶ 21.
{¶35} As we stated earlier, the admission or exclusion of evidence
rests within the sound discretion of the trial court. As such, absent an abuse
of discretion, we will not disturb a trial court's ruling regarding the
admissibility of evidence. Having overruled Appellant’s challenges raised
herein, we cannot conclude that trial counsel’s failure to object to the
complained of portions of the trooper testimony and video tape changed the
outcome of the trial. Further, considering that Appellant identified the drugs
found and admitted to ownership of them, we cannot conclude that a
successful motion to suppress on other grounds would have changed the
outcome of the trial. Thus, Appellant cannot establish prejudice. State v.
Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 73; See
also State v. Parker, 4th Dist. No. 03CA43, 2004-Ohio-1739, 2004 WL
728249, ¶ 13 (concluding that in light of overwhelming evidence of guilt,
defendant could not establish prejudice resulting from counsel's alleged Washington App. No. 11CA22 21
ineffectiveness); State v. Hester, 10th Dist. No. 02AP-401, 2002-Ohio-6966,
¶ 16 (finding that overwhelming evidence of guilt prevented defendant from
proving that result would have been different).
{¶36} As such, even assuming arguendo that trial counsel’s
representation constituted deficient performance, because we find no
prejudice occurred as a result, we cannot conclude that Appellant received
ineffective assistance of counsel. Accordingly, Appellant’s third and final
assignment of error is overruled.
JUDGMENT AFFIRMED. Washington App. No. 11CA22 22
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of 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 Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.