State v. Shoaf

2022 Ohio 3605, 199 N.E.3d 43

• Court: Ohio Court of Appeals
• Decided: October 11, 2022
• Docket: 5-21-21 & 5-21-22
• Status: Published

Opinion

[Cite as State v. Shoaf, 2022-Ohio-3605.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-21-21

v.

ANNA MAE SHOAF, OPINION

DEFENDANT-APPELLANT.

PLAINTIFF-APPELLEE, CASE NO. 5-21-22

Appeals from Findlay Municipal Court Trial Court Nos. 20TRC04154 and 20CRB01177

Judgments Affirmed

Date of Decision: October 11, 2022

APPEARANCES:

Adam H. Houser for Appellant

Elliott T. Worth for Appellee Case Nos. 5-21-21, 5-21-22

SHAW, J.

{¶1} In this consolidated appeal, defendant-appellant, Anna M. Shoaf

(“Shoaf”), appeals from her convictions in the Findlay Municipal Court.

Facts and Procedural History

{¶2} On August 23, 2020, Shoaf was ticketed for operating a vehicle while

under the influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a), a first-

degree misdemeanor, leaving the scene of an accident (hit-skip) in violation of R.C.

4549.02, a first-degree misdemeanor, and driving between marked lanes in violation

of R.C. 4511.33, a minor misdemeanor. The traffic ticket complaints were filed in

Case No. 20TRC04154 (Hancock App. No. 5-21-21). Case No. 20CRB01177

(Hancock App. No. 5-21-22) concerns a complaint charging Shoaf with

endangering children in violation of R.C. 2919.22(C)(1), a first-degree

misdemeanor. The charges arose from an alleged car accident occurring on

Interstate 75. Shoaf’s vehicle allegedly side-swiped another vehicle, but did not

stop.

{¶3} Shoaf pled not guilty to the charges. Prior to trial, Shoaf filed the same

motion to suppress evidence in each case. A suppression hearing proceeded in

regard to the legality of the stop of her vehicle. At the conclusion of the testimony,

the trial court denied the motions, finding reasonable, articulable suspicion more

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than sufficient to justify the stop of Shoaf’s vehicle to investigate the alleged hit-

skip accident.

{¶4} The cases proceeded to a one-day jury trial. At the conclusion of the

trial, Shoaf was found guilty by the jury on all charges, except that Shoaf’s

determination of guilt of the marked lane violation was by the trial court.

{¶5} Following a sentencing hearing, the trial court sentenced Shoaf, inter

alia, to 90 days in jail, with all days suspended, for the leaving the scene of an

accident conviction; 180 days in jail, with 110 days suspended and 5 days’ credit

for successful completion of a driver intervention program, plus 60 days’ credit for

successful post-sentence home arrest, for the OVI conviction; and 90 days in jail,

with 85 days suspended, for the endangering children conviction, to be served

consecutively. The trial court also fined Shoaf for each offense of which she was

convicted, plus costs. Additionally, the trial court placed Shoaf on probation for a

period of two years in each case, with reconsideration after one-year.

{¶6} Shoaf now appeals, raising the following assignments of error for our

review.

ASSIGNMENT OF ERROR NO. 1

IT WAS AGAINST MANIFEST WEIGHT OF EVIDENCE FOR THE TRIAL COURT TO DEN[Y] APPELLANT’S MOTION TO SUPPRESS.

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ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT MADE REVERSABLE [SIC] ERROR WHEN IT DENIED APPELLANT’S MOTION FOR A MISTRIAL.

ASSIGNMENT OF ERROR NO. 4

THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL.

First Assignment of Error

{¶7} In her first assignment of error, Shoaf challenges the trial court’s ruling

on her motion to suppress contending that it was against the manifest weight of the

evidence when the totality of the circumstances is considered. She argues that two

witnesses for the defense, herself and her daughter, testified that there was no

accident or vehicle collision, and that the only information the police had was based

upon the phone call of the alleged victim. She also argues that none of the police

saw any of the alleged traffic violations that lead to the traffic stop, that the only

photograph of Shoaf’s vehicle shows no damages to the vehicle, and that there was

also no debris found on the highway where the accident took place.

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Standard of Review

{¶8} As we recently stated in State v. Henson, 3d Dist. Marion No. 9-19-75,

2020-Ohio-4019, ¶ 17:

“Appellate review of a decision on a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). When reviewing a motion to suppress, “an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of law, however, our standard of review is de novo, and we must independently determine whether the facts satisfy the applicable legal standard. Id. citing State v. McNamara, 124 Ohio App.3d 706 (4th Dist. 1997).

Law and Analysis

{¶9} “The Fourth Amendment to the United States Constitution and Section

14, Article I of the Ohio Constitution prohibit unreasonable searches and seizures,

including unreasonable automobile stops.” Bowling Green v. Godwin, 110 Ohio

St.3d 58, 2006-Ohio-3563, ¶ 11. Generally, “ ʻthe decision to stop an automobile is

reasonable where the police have probable cause to believe that a traffic violation

has occurred.’ ” Id., quoting Whren v. United States, 517 U.S. 806, 810 (1996).

However, as noted by the Ohio Supreme Court:

Probable cause is certainly a complete justification for a traffic stop, but we have not held that probable cause is required. Probable cause is a stricter standard than reasonable and

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articulable suspicion. State v. Evans, 67 Ohio St.3d 405, 411 (1993). The former subsumes the latter. Just as a fact proven beyond a reasonable doubt has by necessity been proven by a preponderance, an officer who has probable cause necessarily has a reasonable and articulable suspicion, which is all the officer needs to justify a stop.

State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶ 23.

{¶10} An officer only needs a reasonable articulable suspicion that a driver

may have committed a traffic offense in order to justify an investigative stop. See

State v. Gartrell, 3d Dist. Marion No. 9-14-02, 2014-Ohio-5203, ¶ 52. As this Court

has noted:

“The Supreme Court of Ohio has defined ‘reasonable articulable suspicion’ as ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion [upon an individual’s freedom of movement].’” State v. Shaffer, 3d Dist. Paulding No. 11-13-02, 2013-Ohio-3581, ¶ 18, quoting Bobo at 178. “In determining whether reasonable articulable suspicion exists, a reviewing court must look to the totality of the circumstances.” Steinbrunner at ¶ 14, citing State v. Andrews, 57 Ohio St.3d 86, 87-88 (1991). “Under this analysis, a court should consider ‘both the content of the information possessed by police and its degree of reliability.’” Id., quoting City of Maumee v. Weisner, 87 Ohio St.3d 295, 299 (1999).

Gartrell at ¶ 53.

{¶11} As a result, “ ʻ[a]n officer does not have to have personally observed

a traffic violation * * * to justify detaining someone; rather, an officer can rely on

information transmitted to him through a dispatch[.]’ ” Gartrell at ¶ 54, quoting

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Steinbrunner, 2012-Ohio-2358, at ¶ 15, citing Weisner at 297. As noted by the

Fourth District:

An informant’s tip may provide officers with the reasonable suspicion necessary to conduct an investigative stop. Abernathy, 4th Dist. No. 07CA3160, 2008-Ohio-2949 at ¶ 26. Where the information possessed by the police before the stop stems solely from an informant’s tip, the determination of reasonable suspicion will be limited to an examination of the weight and reliability due that tip. Maumee, 87 Ohio St.3d 295, 1999-Ohio- 68, at 299. The appropriate analysis then is whether the tip itself has sufficient indicia of reliability to justify the investigative stop. Id. Factors considered “highly relevant in determining the value of the [informant’s] report” are the informant’s veracity, reliability, and basis of knowledge. Id. (Citations omitted).

State v. George, 4th Dist. Ross No. 12CA3351, 2013-Ohio-2511, ¶ 16. In Maumee,

the Ohio Supreme Court further explained that a tip from an identified citizen

informant, even though it does not determine the outcome of the case and is only

one element of the totality-of-the-circumstances review of the tip itself, weighs in

favor of the informant’s reliability and veracity. Maumee at 302. In Maumee, the

Court concluded that the “informant was an identified citizen who based his

knowledge of the facts he described upon his own observations as the events

occurred. As a result, his tip merits a high degree of credibility and value, rendering

it sufficient to withstand the Fourth Amendment challenge without independent

police corroboration.” Id.

{¶12} In this case, at the suppression hearing, the victim Ms. Newyear

testified that Shoaf’s vehicle (a dark Nissan Rogue) hit, or side-swiped, her vehicle

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on the driver’s side while she was driving on Interstate 75 in the Findlay area. She

stated that Shoaf did not stop. She then followed the Shoaf vehicle and her

passenger immediately contacted the police. She also testified she followed the

vehicle, never losing sight of it, until it was stopped by police.

{¶13} Trooper Gossard and Sergeant Kinney of the Ohio State Highway

Patrol both testified that they responded to the call the Findlay Dispatch Center

received about a hit-skip incident on Interstate 75 near mile post 156. The caller

was from the victim’s vehicle that was struck, following the other vehicle, and

updating dispatch regarding their location the entire way. Plus, dispatch provided

the suspect vehicle’s description and license plate number. Hardin County Sheriff’s

Deputies were called to assist, and located the suspect’s vehicle and stopped it, as

well as the victim’s vehicle stopped.

{¶14} The trial court was in the best position to determine Ms. Newyear’s

credibility; our role is to determine whether sufficient facts are in the record to

support the trial court’s conclusions. State v. Moiduddin, 3d Dist. Union No. 14-

18-15, 2019-Ohio-3544, ¶ 9. Based upon the totality of the circumstances and given

that the deputies, state trooper and sergeant relied on the dispatch from the identified

informant and the subsequent information to perform the investigative traffic stop

of Shoaf’s vehicle, we conclude that the trial court properly overruled Shoaf’s

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motion to suppress. The State’s evidence satisfies the burden of establishing the

stop’s constitutionality.

{¶15} We also do not agree that that the trial court’s ruling on the suppression

motion was against the manifest weight of the evidence. “When a defendant raises

a manifest-weight argument, we must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether,

in resolving conflicts in the evidence, the trier of fact clearly lost its way and created

a manifest miscarriage of justice.” State v. Coppage, 2d Dist. Montgomery No.

19404, 2003-Ohio-2076, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52.

{¶16} Shoaf’s argument rests upon an implication that the trial court should

not have believed Ms. Newyear’s testimony. In particular, Shoaf challenges Ms.

Newyear’s testimony based on the contrary or conflicting testimony of Shoaf and

her daughter Rhesa that there was no accident. We note the trial court heard Ms.

Newyear’s testimony about some crucial facts with regard to the accident on which

her passenger’s call to dispatch was made and nothing about Ms. Newyear’s

testimony is so incredible. In light of this testimony, we cannot find that the trial

court’s denial of the motion to suppress was against the manifest weight of the

evidence.

{¶17} Based on the foregoing, Shoaf’s first assignment of error is overruled.

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Second Assignment of Error

{¶18} Shoaf makes two arguments under her second assignment of error.

She argues that the jury’s verdict of guilty of leaving the scene of an accident and

of OVI were against the manifest weight of the evidence. She also argues that the

trial court’s conviction of committing a marked lane violation was against the

manifest weight of the evidence.

{¶19} Again, an appellate court applies the same manifest weight standard

of review. In determining whether a conviction is against the manifest weight of

the evidence, the appellate court sits as a “ ‘thirteenth juror’ ˮ and examines the

conflicting testimony. State v. Henson, 3d Dist. Marion No. 9-19-75, 2020-Ohio-

4019, at ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.

We review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses and determine whether in resolving conflicts of

evidence, the factfinder “ ‘clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’

ˮ Id.

{¶20} However, a reviewing court must allow the trier-of-fact appropriate

discretion on matters relating to the credibility of the witnesses. Id., citing State v.

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DeHass, 10 Ohio St.2d 230, 231 (1967). Further, an appellate court will overturn a

conviction as being against the manifest weight of the evidence only in the

exceptional case in which the evidence weighs heavily against the conviction. Id.

Controlling Statutes

{¶21} Shoaf was convicted of leaving the scene of an accident in violation

of R.C. 4549.02, OVI in violation of R.C. 4511.19(A)(1)(a), and a marked lane

violation in violation of R.C. 4511.33.

{¶22} “[R.C. 4549.02(A)(1)] In the case of a motor vehicle accident or

collision with persons or property on a public road or highway, the operator of the

motor vehicle, having knowledge of the accident or collision, immediately shall stop

the operator’s motor vehicle at the scene of the accident or collision. The operator

shall remain at the scene of the accident or collision until the operator has given the

operator’s name and address * * * to all of the following: (a) Any person injured in

the accident or collision; (b) The operator, occupant, owner, or attendant of any

motor vehicle damaged in the accident or collision; (c) The police officer at the

scene of the accident or collision.”

{¶23} “[R.C. 4511.19(A)(1)(a)] No person shall operate any vehicle * * *

[while] under the influence of alcohol[.]”

{¶24} “[R.C. 4511.33(A)(1)] Whenever any roadway has been divided into

two or more clearly marked lanes for traffic, or wherever within municipal

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corporations traffic is lawfully moving in two or more substantially continuous lines

in the same direction, the following rules apply: (1) A vehicle or trackless trolley

shall be driven, as nearly as is practicable, entirely within a single lane or line of

traffic and shall not be moved from such lane or line until the driver has first

ascertained that such movement can be made with safety.”

Analysis

{¶25} Shoaf asserts in support of her contentions regarding manifest weight

of the evidence that both she and her daughter testified that there was not an accident

and that there was no evidence that she ever left her lane of the highway.

{¶26} As part of its case-in-chief, the State produced the testimony of Hardin

County Sheriff’s Deputies Christopher Fannon and Luke Heilman, Ms. Newyear,

and Trooper Gossard and Sergeant Kinney of the Ohio State Highway Patrol.

{¶27} The trial testimony largely echoed that of the suppression hearing

testimony regarding the traffic stop in this case. Trooper Gossard and Sergeant

Kinney responded to the dispatch on August 23, 2020 regarding a hit-skip accident

that occurred on I-75 in Hancock County at mile post 156 and that the at-fault

vehicle was not stopping. Dispatch also reported the caller was following the

vehicle with continual updating of the vehicles’ location to them as they proceeded

to catch up to the vehicles. The Hancock County Sheriff’s deputies assisted in

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stopping the reported vehicle in Hardin County, with the other vehicle following

behind and the deputies being flagged down.

{¶28} Ms. Newyear testified that she was driving in the middle lane on

Interstate 75 when Shoaf’s vehicle hit the whole driver’s side of her vehicle, causing

her driver’s side mirror to close in. She testified that she was driving straight when

Shoaf’s vehicle came into her lane. Ms. Newyear testified Shoaf first did pull over

when she motioned her, then took off again, so she followed Shoaf’s vehicle and

her passenger called 911. She testified that she never lost sight of the vehicle she

was following, a dark-colored Nissan, until it was stopped, and she described the

damage to her vehicle starting from a dent at the front wheel well “but then even all

along * * * the hub cap area was all dark and it went all the way to the very back of

my car. It was the whole entire side of my car.” (Tr. at 77-78).

{¶29} During the stop, Sergeant Kinney observed the damage along the

entire driver’s side of Ms. Newyear’s light-colored sedan--a dent in the front fender,

some fresh scratches and scuffs, paint transfer, and some black marks which would

be tire transfer on the vehicle--and the same type of fresh damage on Shoaf’s

passenger side from front to back--scratches, paint transfer, some scuffs, and also

some black tire marks. According to Sergeant Kinney, the damages are consistent

with Ms. Newyear’s account of the accident in which the vehicle driving in the left-

hand lane came into the middle lane of traffic. Both deputies also observed the

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damage which Deputy Fannon stated appeared to be fresh on the passenger side of

Shoaf’s vehicle. Deputy Heilman was wearing a body cam at that time, and the

State introduced into evidence the video footage showing them observing the

damage on the vehicles. The jury watched the deputy’s body cam video, which

corroborated Ms. Newyear’s testimony about the damage from the accident.

{¶30} When Trooper Gossard asked Shoaf if she was involved in an

accident, she denied being in an accident. The trooper asked Shoaf to exit her

vehicle so that he could show the damage to her vehicle. The trooper asked Shoaf

about whether she had prior damage to the vehicle and she replied “no.” (Tr. at

105).

{¶31} The defense provided the testimony of Shoaf and her teenage

daughter, who was a passenger in her vehicle. Both maintain that no accident had

taken place on August 23rd. According to Shoaf, “everything was normal,” and she

“had gotten through the construction area.” (Tr. at 171). “There was a piece of

rubber in like the middle of the white lines so I would say the fast lane and middle

lane there was a piece of rubber so I kind of went around it but I never left my lane.”

(Id.) She further testified—“The next thing I know, like I said or like my daughter

testified, we were listening to music and talking amongst ourselves, everything was

fine. Next thing I know I am getting pulled over when I got off onto 68 in Kenton.”

(Id.) In addition, Shoaf testified that Defendant’s Exhibit A, a photo of her vehicle,

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was taken the following morning which she claims showed there were no “scrapes

and dents and scratches along my car.” (Tr. at 172).

{¶32} Despite the testimony in Shoaf’s defense, we note that there was

contradictory evidence and testimony presented about what occurred. The jury

heard testimony from the victim and the responding officers who indicated that there

was damage to both vehicles indicative of the fact that they had recently been in an

accident with one another. Additionally, while the jury viewed the photo that Shoaf

allegedly took on the day following the accident, the jury also viewed the body cam

footage documenting the damage on Shoaf’s vehicle. Further, the prosecution

presented, as rebuttal testimony, testimony from Trooper Gossard that the photo was

“not an accurate depiction of the vehicle at the scene.” (Tr. at 184).

{¶33} Although there are conflicts in the testimony presented at trial, such

conflicting testimony, in and of itself, does not demonstrate that a conviction was

against the manifest weight of the evidence. As this Court has stated, we will not

overturn a conviction as being against the manifest weight of the evidence simply

because the trier of fact chose to believe the State’s version of the events over

another version. State v. Anders, 3d Dist. Hancock No. 5-16-27, 2017-Ohio-2589,

¶ 57. Having reviewed the entire record, weighed the evidence and all reasonable

inferences, and examined the credibility of witnesses, we cannot conclude that the

jury clearly lost its way and created a manifest miscarriage of justice in choosing

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the State’s version of events. Accordingly, under the circumstances, Shoaf has not

demonstrated that her conviction for leaving the scene of an accident (hit/skip) is

against the manifest weight of the evidence. Further, as it pertains to the marked

lane violation, we do not find that Shoaf’s conviction is against the manifest weight

of the evidence.

{¶34} Shoaf further argues in support of her manifest weight of the evidence

contentions that there was “no proof that her blood alcohol level was over the legal

limit and no evidence showing her impairment.” (Appellant’s Brief at 13). Shoaf’s

argument is that she was having a diabetic episode when the police arrived on the

scene and how it would affect the field sobriety tests, or the fact of being “legally

blind,” were not taken into account when the tests were performed. The argument

is also that no additional tests were performed, beyond her two failed attempts to

perform a breathalyzer, to demonstrate the level of blood alcohol in her system.

{¶35} Shoaf herself testified that when the police pulled her over, she

explained her medical condition. Specifically, she testified that, “So I did test my

sugar. The officer asked if I was okay and I said yes I thought, so. And I showed

him my sugar and said it was quite high, about 250.” (Tr. at 171). Aside from this

fact, Shoaf did elaborate upon how it affects her, “He got me out of the vehicle, did

a field sobriety test, but my vision at that point was a little off and most of the time

when my sugar is very high I am very off kilter, off balance.” (Id.). She admitted

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to having one margarita at dinner and she later clarified that she had “one margarita

that was about that big and maybe two actual sips of another one.” (Tr. at 170, 177).

Shoaf further testified that she is legally blind in her left eye. She explained that “if

my hand was in front of me I was seeing double or triple, there wasn’t a straight line

of vision[.]” (Tr. at 172).

{¶36} Shoaf’s daughter also testified about when her mother’s sugar gets

high and stated that her vision can go blurry, her words can be slurred and she can

sometimes be off balance. Her daughter testified that she was not sure if her mother

was having any issues relating to her diabetes on the day of the stop, but “[a]ll I

know is I believe her sugar was high because she had to put her glasses on.” (Tr. at

160).

{¶37} The State points to our opinion in State v. Risner, 3d Dist. Seneca No.

13-19-03, 2019-Ohio-4120, in arguing there, as here, it is a credibility evaluation

and not the exceptional case where the evidence weighs heavily against the

conviction. The relevant part of this Court’s opinion states as follows:

Contrary to Risner’s arguments, the State presented evidence of [Risner’s] impairment through Trooper Fowler’s testimony and through the dash camera video wherein her divided attention tests could be observed. In addition to this, the jury was able to see Risner and evaluate her credibility as to whether they believed she only had some “sips” of alcohol, and whether any purported medical condition she claimed to have would have impacted her on the field sobriety tests. Moreover, through the video the jury was able to observe Risner’s performance on the divided attention tests, and the jury could hear her voice. The jury was also able to

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evaluate the credibility of Trooper Fowler’s testimony regarding the odor of an alcoholic beverage and Risner’s bloodshot, glassy eyes. Credibility is a matter soundly within the determination of the jury, and we must give deference to the jury’s determination. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

Risner at ¶ 36.

{¶38} The State thus argues that the jury here was also able to determine

whether they believed “any purported medical condition she claimed to have would

have impacted her on the field sobriety tests.” (Appellee’s Brief at 16).

{¶39} At Shoaf’s trial, Deputy Fannon testified that during his initial contact

with Shoaf, she told him “she was having a diabetic issue.” (Tr. at 25). The jury

also heard testimony that Trooper Gossard arrived on the scene shortly thereafter.

When Trooper Gossard approached Shoaf’s vehicle and spoke with her, she advised

him that she thought her blood sugar is high. He asked her if she needed an

ambulance and she replied, “no.” (Tr. at 105). While speaking to Shoaf about her

vehicle, Trooper Gossard detected an odor of alcohol emitting from within the

vehicle and also observed that her face was flushed, her cheeks were kind of red,

and her speech was slurred. Deputy Heilman could also smell the odor of an

alcoholic beverage coming from the vehicle.

{¶40} During the trooper’s investigation, Shoaf said that she had consumed

1 – ½ margaritas. Trooper Gossard recalled Shoaf again mentioning her blood sugar

issue and that she advised the same reply “no” when asked if she wanted an

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ambulance. (Tr. at 149). Trooper Gossard asked Shoaf to perform field sobriety

tests, to which Shoaf consented. Trooper Gossard then conducted a Horizontal Gaze

Nystagmus Test (“HGN”), noting Shoaf said she was legally blind in her left eye

but would try to follow his stimulus. Trooper Gossard testified that he “made an

effort to make sure that her left eye was tracking [his] stimulus correctly and it was.”

(Tr. at 110). Trooper Gossard testified in detail about the test, “Nystagmus is an

involuntary jerking of the eye and when somebody is on a depressant such as

alcohol, their eyes, the muscles around their eyes will relax to the point when their

eyes are moving that they will involuntary[ily] bounce.” (Tr. at 109). With respect

to the HGN test, Trooper Gossard testified that he observed six out of six possible

clues of impairment, or three in each eye.

{¶41} Trooper Gossard also had Shoaf perform walk-and-turn and one-leg

stand tests. On the walk-and-turn test, Trooper Gossard observed six out of eight

possible clues, with two clues indicating possible impairment. With respect to the

one-leg stand test, Trooper Gossard testified Shoaf could not hold her foot

approximately six inches off the ground for more than a few seconds at a time and

was ultimately marked down as “could not do” because of his concern that Shoaf

was going to fall over based on her attempts. (Tr. at 115). After conducting these

tests, Trooper Gossard, based on his training and experience and the observed signs

of impairment, believed that Shoaf was under the influence of alcohol. Through his

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training and experience, Trooper Gossard further testified that “we have never been

trained that a high blood sugar is going to show nystagmus in your eye, so one of

the tests that we rely most heavily on is the one that is 88 percent accurate, which is

the Horizontal Gaze Nystagmus Test[.]” (Tr. at 117). Following the field sobriety

tests, Trooper Gossard then arrested Shoaf for OVI. Shoaf’s performance on two

of the field sobriety tests—the walk-and-turn and the one-leg stand tests—was

recorded on Deputy Heilman’s body-cam, which was played for the jury.

{¶42} After arresting Shoaf, Trooper Gossard then transported her to the

Kenton Police Department. Trooper Gossard made two attempts to have Shoaf blow

into a breathalyzer machine, and she provided an insufficient breath sample on the

first attempt and an invalid sample reading the second time. According to Trooper

Gossard, Shoaf was ultimately marked down as refusing to take the breathalyzer test

because he believed that she was trying to sabotage the test.

{¶43} In addition, while Shoaf is correct that no additional tests were

performed to determine the level of alcohol in her system, we observe that she was

charged with OVI under R.C. 4511.19(A)(1)(a), which requires evidence that the

driver is under the influence of alcohol or drug of abuse. See State v. Henderson,

5th Dist. Stark No. 2004-CA-00215, 2005-Ohio-1644, ¶ 32. The jury was free to

rely on the accident, the testimony from law enforcement of their observations of

Shoaf at the scene, and the field sobriety tests, and we cannot find that the jury

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clearly lost its way here and created a manifest miscarriage of justice in reaching

the conclusion that Shoaf was under the influence of alcohol. Accordingly, Shoaf’s

conviction for OVI is not against the manifest weight of the evidence.

Third Assignment of Error

{¶44} In her third assignment of error, Shoaf asserts the trial court committed

reversible error in denying her motion for a mistrial because the jury was shown

video evidence of Shoaf taking a handheld breathalyzer test that would have

improperly influenced the jury.

{¶45} At trial, Deputy Sheriff Heilman’s body camera footage taken during

the traffic stop of Shoaf was played for the jury. Defense counsel then requested a

mistrial based on the fact that a portion of the video, which was played for the jury,

showed Shoaf taking a handheld breathalyzer test. The trial court denied the motion,

finding that brief clip was no more than three to four seconds.

{¶46} “Generally, when a motion for a mistrial is actually made, its denial is

within the sound discretion of the trial court.” State v. Risner, 3d Dist. Seneca No.

13-19-03, 2019-Ohio-4120, at ¶ 40, citing State v. Garner, 74 Ohio St.3d 49 (1995);

State v. Dodson, 3d Dist. Seneca No. 13-10-47, 2012-Ohio-5576, ¶ 13. “Mistrials

should only be granted in those situations in which a fair trial becomes impossible.”

Id. citing State v. Franklin, 62 Ohio St.3d 118 (1991).

-21- Case Nos. 5-21-21, 5-21-22

{¶47} In this case, there was no more than a brief reference of the police

body-cam footage showing Shoaf taking a handheld or portable breathalyzer test,

and other factors minimized any potential prejudice resulting from it being viewed

by the jury. The jury never heard testimony from any witness regarding the portable

breath test or the results thereof. The trial court then gave a cautionary instruction

concerning the video after the evidence was closed and before the case went to the

jury. Therefore, based on this record, we conclude the trial court did not abuse its

discretion by denying the motion for mistrial. The third assignment of error is

overruled.

Fourth Assignment of Error

{¶48} In support of the fourth assignment of error, Shoaf asserts that she

received ineffective assistance of trial counsel for the following reasons: (1)

counsel failed to provide a medical expert as it related to Shoaf’s diabetes and

blindness in her one eye; (2) counsel failed to object to the State Trooper testifying

to the results of Shoaf’s diabetes and the field sobriety tests; (3) counsel failed to

move for acquittal of the OVI charge at the time of the Crim.R. 29 motion and failed

to renew the motion for acquittal at the close of defense evidence; (4) counsel failed

to argue the OVI charge in closing arguments; (5) counsel failed to object to

prosecutorial misconduct when the prosecutor, in closing, included facts not in

evidence; (6) counsel failed to move to suppress and/or object to the field sobriety

-22- Case Nos. 5-21-21, 5-21-22

tests; and (7) counsel failed to move to suppress and/or object to Shoaf’s statements

to the police after she was in police custody and not mirandized.

Legal Analysis

{¶49} To establish an ineffective assistance of counsel claim, Shoaf must

show both deficient performance, that her defense counsel’s performance fell below

an objective standard of reasonable representation, and prejudice. State v.

Blackburn, 3d Dist. Logan No. 8-21-25, 2022-Ohio-988, ¶ 18-19. Although the

issue of ineffective assistance of counsel is a two-pronged analysis, the appellate

court does not need to consider the facts of the case under both prongs if the

appellant makes an insufficient showing on one. State v. Crawford, 3d Dist. Henry

No. 7-20-05, 2021-Ohio-547, ¶ 18, citing State v. Baker, 3d Dist. Allen No. 1-17-

61, 2018-Ohio-3431, ¶ 19, citing State v. Walker, 3d Dist. Seneca No. 13-15-42,

2016-Ohio-3499, ¶ 20.

{¶50} “ ‘To show prejudice, the [appellant] must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.’ ˮ State v. Moll, 3d Dist. Defiance No. 4-19-17, 2020-Ohio-2784, ¶

4, quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 95. Moreover,

when considering the deficient performance part of an ineffectiveness claim inquiry,

a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. State v. Ball, 3d Dist. Allen No.

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1-21-16, 2022-Ohio-1549, ¶ 46. Thus, the appellant must overcome the strong

presumption that, under the circumstances, counsel’s performance was adequate or

that counsel’s actions might be considered sound trial strategy. State v. Artis, 3d

Dist. Logan No. 8-18-40, 2019-Ohio-2070, ¶ 31, citing State v. Maxwell, 139 Ohio

St.3d 12, 2014-Ohio-1019, ¶ 180. As this Court has recognized in reviewing claims

of ineffective assistance, tactical or strategic trial decisions, even if ultimately

unsuccessful, will not substantiate a claim of ineffective assistance of counsel. State

v. Hines, 3d Dist. Marion No. 9-05-13, 2005-Ohio-6696, ¶ 38. We further note that

counsel’s failure to make objections is not alone enough to sustain a claim of

ineffective assistance of counsel. Conway at ¶ 103.

{¶51} Shoaf first argues that her trial counsel’s failure to present medical

expert testimony as to Shoaf’s diabetes and blindness in one eye constitutes

ineffective assistance. Shoaf also argues her trial counsel was ineffective for failing

to object to Trooper Gossard’s testimony “as to his training as to diabetes and field

sobriety tests.” (Appellant’s Brief at 17). We note initially that “ ‘[a] decision by

trial counsel not to call an expert witness generally will not sustain a claim of

ineffective assistance of counsel.’ ˮ State v. Wilson, 3d Dist. Allen No. 1-20-46,

2022-Ohio-504, ¶ 134, quoting Conway at ¶ 118. This Court also pointed out in

Wilson that “[i]n fact, in many criminal cases trial counsel’s decision not to seek

expert testimony ‘is unquestionably tactical because such an expert might uncover

-24- Case Nos. 5-21-21, 5-21-22

evidence that further inculpates the defendant.’ ˮ Id., quoting State v. Glover, 12th

Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392, at ¶ 95. Further, as noted,

even if the decision may be debatable, a debatable trial strategy decision does not

constitute ineffective assistance of counsel. Id.

{¶52} Based on the record in this case, it appears trial counsel made a

strategic decision under the circumstances of this case to focus on the issues through

lay testimony. As previously mentioned, Shoaf said that she was having high blood

sugar when she was stopped, but she told Trooper Gossard after he arrived and

spoke with her she did not want an ambulance called at that time and also several

times later when he asked her during the field sobriety tests. The State’s questioning

on direct was limited to what Trooper Gossard knew based on his training and

experience using field sobriety tests, including HGN tests, and, in fact, Shoaf never

indicated any unwillingness to perform the tests because of her medical conditions

at the time. Then, on cross-examination on the subject, Trooper Gossard admitted

that his training in field sobriety tests was designed to detect impairment from

alcohol rather than diabetes. Further, trial counsel and the prosecutor did not ask

Shoaf complex medical questions, but rather asked Shoaf and her daughter about

Shoaf’s symptoms when her blood sugar is high. Accordingly, Shoaf fails to

demonstrate ineffective assistance here as she does not demonstrate a reasonable

probability of a different outcome of her trial.

-25- Case Nos. 5-21-21, 5-21-22

{¶53} Shoaf next argues ineffective assistance of trial counsel based on

counsel’s failure to include the OVI charge in the Crim.R. 29 motion for acquittal

or argue it in closing argument, and also to renew the Crim.R. 29 motion at the close

of the defense evidence.

{¶54} We note trial counsel made a Crim.R. 29 motion for acquittal at the

close of the State’s case in chief with respect to the marked lane and leaving the

scene of an accident violations. The motion was denied. At the conclusion of all

the testimony, trial counsel did not renew the Crim.R. 29 motion.

{¶55} The standard applied by a trial court determining a Crim.R. 29 motion

is set forth in State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus: “Pursuant to

Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the

evidence is such that reasonable minds can reach different conclusions as to whether

each material element of a crime has been proved beyond a reasonable doubt.” In

reviewing claims of ineffective assistance, including a claim that failure to make a

Rule 29 motion for acquittal constituted ineffective assistance, we note this Court’s

decision in State v. Hines, 3d Dist. Marion No. 9-05-13, 2005-Ohio-6696, at ¶ 38,

in which we concluded upon review of the trial court record that: “the evidence [of

the] case regarding the claims of ineffective assistance of counsel revealed tactical

or strategic trial decisions. As such, they do not fall below an objective standard of

reasonable representation.”

-26- Case Nos. 5-21-21, 5-21-22

{¶56} Upon review, even though it appears that trial counsel’s choices in the

present case can be considered as a matter of trial tactics or strategy, we find the

evidence produced by the prosecution would have passed a Crim.R. 29 challenge.

Further, we note that a “prominent” part of trial counsel’s closing argument was on

the issue of the accident, as the jury heard conflicting testimony on this issue, and

that the video was helpful to the defense’s case. Counsel concluded his argument

by asking the jury to “watch the video” and by stating: “And when you are finished

I am confident that you will find Anna Shoaf not guilty of these charges.” (Tr. at

199). Consequently, the record in this case does not support these particular

allegations of ineffective assistance of trial counsel.

{¶57} Shoaf next argues that trial counsel was ineffective for failing to object

to two instances of alleged prosecutorial misconduct during the prosecution’s

closing argument. “ ‘The test for prosecutorial misconduct during * * * closing

arguments is whether the remarks made by the prosecutor were improper and, if so,

whether they prejudicially affected a substantial right of the accused.’ ˮ State v.

Potts, 3d Dist. Hancock No. 5-16-03, 2016-Ohio-5555, ¶ 82, quoting State v. Siefer,

3d Dist. Hancock No. 5-09-24, 2011-Ohio-1868, ¶ 46, citing State v. White, 82 Ohio

St.3d 16, 22 (1998). “ ‘In closing arguments, prosecutors are entitled to some

latitude regarding what the evidence has shown and the inferences that can be

drawn.’ ˮ Id., quoting State v. McGuire, 3d Dist. Allen No. 1-13-47, 2015-Ohio-

-27- Case Nos. 5-21-21, 5-21-22

1887, ¶ 81, citing State v. Ballew, 76 Ohio St.3d 244, 255 (1996). However, a

prosecutor cannot go beyond the evidence which is before the jury when arguing

for a conviction. Id. Additionally, to establish prejudice, an appellant must show

that a reasonable probability exists that, but for the prosecutor’s improper remarks,

the result of the proceeding would have been different. State v. Liles, 3d Dist. Allen

No. 1-14-61, 2015-Ohio-3093, ¶ 31.

{¶58} The first instance of alleged misconduct occurred when the prosecutor

argued to the jury that Shoaf “is around people who have been under the influence.

She’s around attorneys who have tried these kinds of cases. She has heard someone

say oh you mentioned you have diabetes, you can get off.” (Tr. at 190). There was

some evidence in the record that Shoaf was currently working at a high-end

steakhouse and a country club. However, there was no evidence that Shoaf ever

heard any such comments, met any such customers or attorneys, or had any such

conversations, during such employment. As such, the prosecution’s statements,

essentially urging the jurors to presume the existence and content of such

conversations, based solely on the fact of her employment at those locations, was

improper and constituted error.

{¶59} The second instance of alleged prosecutorial misconduct occurred

when the prosecutor argued to the jury “you heard the Trooper testify as to why he

did all the field sobriety tests he did.” (Tr. at 191). The prosecutor continued: “He

-28- Case Nos. 5-21-21, 5-21-22

did all of them to rule out diabetes. He did it to say yes we were right, that could be

something that I should be concerned about and how can I assist you if there is a

medical condition, you don’t want me to call an ambulance, okay, now I’ve got

another job because when I talk to you about this accident I am smelling alcohol.

Now I am going to run you through the H.G.N., Horizontal Gaze Nystagmus. That

is not affected by diabetes. You heard that testimony.” (Id.). While Trooper

Gossard did testify that through his training and experience he has never been told

that high blood sugar is going to make a person have nystagmus, the prosecutor’s

suggestion that the field sobriety tests in this case were conducted to rule out

diabetes, exceeded the limits of acceptable argument based on the trooper’s

testimony, which was that he had received training on field sobriety tests designed

to detect alcohol impairment in drivers, and that he had not received any instruction

on the effects of diabetes on those tests.

{¶60} In sum, we acknowledge prosecutorial error in both of these instances.

However, we cannot find that the misconduct was so prejudicial that Shoaf was

deprived of a fair trial in the context of the entire record and in light of the trial

court’s instruction to the jury that “[t]he evidence does not include * * * the opening

statements or closing arguments” of either attorney (Jury Charge at 8).

{¶61} Finally, Shoaf argues that her trial counsel was ineffective because he

failed to move to suppress and/or object to the admission of the field sobriety tests

-29- Case Nos. 5-21-21, 5-21-22

and also to suppress and/or object to her statements about consuming alcohol on the

ground that she was in police custody and not mirandized.

{¶62} Contrary to Shoaf’s argument, trial counsel did file motions to

suppress the evidence obtained as a result of the traffic stop, including “tests

designed to ascertain Defendant’s possible impairment from alcohol or drugs of

abuse” and “statements or assertive conduct made by Defendant in response to

questioning,” and the trial court denied the motions. (Doc. No. 16 Case No.

20TRC04154; Doc. No. 10 Case No. 20CRB01177). Moreover, in reviewing an

ineffective assistance claim for failure to file a motion to suppress, this Court

recently noted that “ ‘the failure to file a motion to suppress constitutes ineffective

assistance of counsel only when the record establishes that the motion would have

been successful if made.’ ˮ State v. Line, 3d Dist. Allen No. 1-19-07, 2019-Ohio-

4221, ¶ 10, quoting State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499,

¶ 23, quoting State v. Brown, 12th Dist. Warren No. CA2002-03-026, 2002-Ohio-

5455, ¶ 11.

{¶63} It is well-established that a police officer may not request a motorist

to perform field sobriety tests unless that request is based on a reasonable,

articulable suspicion that the person was driving under the influence of alcohol or

drugs. See State v. Angers, 3d Dist. Auglaize No. 2-21-04, 2021-Ohio-3640, ¶ 26.

The totality of the circumstances is considered when analyzing the reasonableness

-30- Case Nos. 5-21-21, 5-21-22

of the request, viewed through the eyes of a reasonable and prudent police officer

on the scene who must react to events as they unfold. State v. Null, 3d Dist. Logan

No. 8-19-50, 2020-Ohio-3222, ¶ 18.

{¶64} Here, in light of the detailed record before us, Shoaf cannot show that

a motion to suppress concerning whether there was reasonable suspicion to conduct

the field sobriety tests would have been granted had it been filed, and she thus fails

to make the necessary showing to establish ineffective assistance of counsel. As

such, given the totality of the circumstances beyond Shoaf’s traffic violations, trial

counsel’s failure to object to in-court testimony does not amount to ineffective

assistance. Also, to the extent Shoaf attempts to assert ineffective assistance based

on trial counsel’s failure to use the National Highway Traffic Safety Administration

(NHTSA) manual to question Trooper Gossard, we note that the parties first

stipulated at trial to the trooper’s NHTSA training and certification with respect to

administering field sobriety tests and that he then testified about the tests he

administered and how he evaluated the results of each of the standardized tests

administered to Shoaf in accordance with his training and the NHTSA standards for

conducting field sobriety tests.

{¶65} In addition, from a review of the record, we find that Shoaf has not

established ineffective assistance of counsel for failure to challenge her statements

about consuming alcohol. The facts indicate that Trooper Gossard’s questions about

-31- Case Nos. 5-21-21, 5-21-22

Shoaf’s consumption of alcohol and her statements were made prior to being

arrested and placed in custody. During the traffic stop, Trooper Gossard asked

Shoaf to come and sit in the front seat of his patrol car while he asked her questions

about the crash and attempted to get a statement, and also asked her questions about

her consumption of alcohol. According to Trooper Gossard’s testimony, Shoaf had

originally stated during the traffic stop that she had consumed one margarita, but

later while seated in the patrol car she stated that she had 1 – ½ margaritas. She was

not handcuffed, nor under arrest at that time. As this Court has previously held, a

person is not in custody when they are patted down and placed in the back seat of a

patrol car for safety purposes. State v. Heimberger, 3d Dist. Marion No. 9-17-45,

2018-Ohio-3001, ¶ 19. The person was not handcuffed and was not under arrest.

Id. Similarly, in a case more closely aligned factually with this one, the Seventh

Appellate District concluded that a person is not in custody for purposes of Miranda

when the questioning regarding consumption of alcohol occurred during an ordinary

traffic stop. State v. Leffler, 7th Dist. Columbiana No. 18 CO 0032, 2019-Ohio-

3964, ¶ 27. Further, in that case, although the person had been patted down and was

seated in the backseat of a cruiser when a second questioning occurred regarding

consumption of alcohol, the person was not handcuffed at that point and no

statement was obtained in violation of Miranda. Id. at ¶ 29, 32.

-32- Case Nos. 5-21-21, 5-21-22

{¶66} Accordingly, for all the foregoing reasons, Shoaf’s fourth assignment

of error is overruled. The judgments of the Findlay Municipal Court, Hancock

County, appealed from are affirmed.

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

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