[Cite as Toledo v. Taylor, 2020-Ohio-3991.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio/City of Toledo                            Court of Appeals Nos. L-19-1205
                                                                              L-19-1206
        Appellee
                                                        Trial Court No. TRC-19-03599
v.

April Maria Taylor                                      DECISION AND JUDGMENT

        Appellant                                       Decided: August 7, 2020

                                                 *****

        David Toska, Chief Prosecutor, and Jimmie Jones, Assistant
        Prosecutor, for appellee.

        Tyler Naud Jechura, for appellant.

                                                 *****

        ZMUDA, P.J.

                                              I. Introduction

        {¶ 1} In this consolidated appeal appellant, April Taylor, appeals the judgment of

the Toledo Municipal Court, sentencing her to ten days in jail after finding her guilty of

operating a motor vehicle under the influence of alcohol or drugs. Finding no error

below, we affirm.
                          A. Facts and Procedural Background

       {¶ 2} On the early morning of February 23, 2019, appellant was operating her

vehicle on Secor Road in Toledo, Ohio, when she was pulled over by Ohio State

Highway Patrol trooper Brian Mull.

       {¶ 3} Prior to initiating the stop, Mull observed appellant traveling at a “very

noticeable high rate of speed” visually estimated to be between 50 and 55 m.p.h. in a

40 m.p.h. zone. Upon activating his radar, Mull determined that appellant was traveling

at a speed of 59 m.p.h. Thereafter, Mull noticed appellant make an “abrupt stop” at a red

light. When the light turned green, Mull observed appellant quickly accelerate through

the intersection and he began to follow appellant.

       {¶ 4} As Mull was observing appellant’s vehicle, he noticed that the left tires

traveled completely over the centerline by approximately one foot. Thereafter, Mull

noticed the right tires travel completely over the lane division line, at which point he

activated his lights and siren to initiate a traffic stop. At the time the stop was initiated,

Mull paced appellant and determined that she was traveling at a rate of speed “in the

upper 60s” in a 35 m.p.h. zone. Subsequently, Mull clocked appellant traveling at a

speed “in the fifties” via radar.

       {¶ 5} During the course of the traffic stop, Mull detected the odor of alcohol

emanating from the passenger compartment of appellant’s vehicle. Consequently, Mull

asked appellant to exit the vehicle, and he proceeded to conduct a series of three sobriety

tests, all of which appellant failed. Thereafter, Mull administered a breathalyzer test,




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which revealed that appellant was operating her vehicle with a blood alcohol content of

.199 grams of alcohol per 210 liters of breath. As a result, Mull issued a citation charging

appellant with one count of operating a vehicle under the influence of alcohol or drugs in

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

operating a vehicle under the influence of alcohol or drugs in violation of R.C.

4511.19(A)(1)(h), a misdemeanor of the first degree, one count of driving under

suspension in violation of R.C. 4510.11, a misdemeanor of the first degree, and one count

of driving in marked lanes in violation of R.C. 4511.33, a minor misdemeanor.

       {¶ 6} On March 15, 2019, appellant appeared before the trial court and entered a

plea of not guilty to the aforementioned charges. Thereafter, the matter proceeded

through pretrial motion practice and discovery.

       {¶ 7} On July 29, 2019, appellant filed a motion to suppress, in which she argued

that the traffic stop that gave rise to her citation was improper because a video of the stop

demonstrated that she was not speeding or traveling outside of the marked lanes as

articulated by the officer who initiated the stop. In its memorandum opposing appellant’s

motion to suppress, filed the same day as appellant’s motion, the state argued that the

traffic stop was justified because the officer witnessed appellant speeding and committing

a marked lanes violation prior to initiating the stop.

       {¶ 8} On August 26, 2019, the matter proceeded to a hearing on appellant’s

motion to suppress. At the conclusion of the suppression hearing, the trial court denied

appellant’s motion to suppress based upon its finding that the traffic stop was supported




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by reasonable articulable suspicion that appellant had sped and committed a marked lanes

violation.

       {¶ 9} The matter then immediately proceeded to a trial before the bench. As its

sole witness, the state called Mull to the stand, who testified regarding the sobriety tests

and the breathalyzer test that he conducted in this case. At the conclusion of the state’s

case in chief, appellant moved for an acquittal under Crim.R. 29, which was granted as to

the charge of driving under suspension, but denied as to the remaining charges.

       {¶ 10} Thereafter, appellant took the stand, testifying that her failure of the

sobriety tests in this case were the result of Mull taking her prescription eyeglasses at the

beginning of the traffic stop. Further, appellant testified that the breathalyzer machine

that Mull used to administer the breathalyzer test broke into pieces while the test was

being administered.

       {¶ 11} In response to appellant’s testimony, the state recalled Mull as a rebuttal

witness. Mull explained that the breathalyzer machine used in this case was functioning

properly on the date of the traffic stop. Mull observed that his pen broke into pieces

during the administration of the breathalyzer test and had to be reassembled.

       {¶ 12} After the parties were finished with their presentation of evidence and

closing arguments, the trial court found appellant guilty of both counts of operating a

vehicle under the influence of alcohol or drugs, but not guilty of driving in marked lanes.

In its explanation for its verdict, the trial court indicated that it found appellant to be less

than credible. The trial court explained that appellant’s defense was inconsistent with the




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results of the breathalyzer test, which revealed that appellant was indeed operating her

vehicle while under the influence of alcohol.

       {¶ 13} The court went on to merge the two counts of operating a vehicle under the

influence of alcohol or drugs. Ultimately, the trial court imposed a sentence of 180 days

in jail, 134 of which the court suspended. As to the remaining 46 days, the court ordered

appellant to serve ten days in jail and 36 days on electronic home monitoring. Further,

the trial court placed appellant on one year of probation, ordered her to pay costs, and

imposed a two-year license suspension. Thereafter, appellant filed her timely notice of

appeal.

                                B. Assignments of Error

       {¶ 14} On appeal, appellant assigns the following assignments of error for our

review:

              I. The assistance of counsel is ineffective when counsel raises

       mitigation as a defense, when raising mitigation requires admissions to an

       offense in an OVI.

              II. The Defendant had evidence to undermine the validity of the

       Breathalyzer she was given. However, trial counsel failed to introduce this

       evidence during the suppression hearing and did not make an effort to

       introduce further evidence in support during trial. This lack of action

       harmed the Defendant by negatively affecting the outcome of trial and

       making counsel’s assistance ineffective.




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       {¶ 15} Because appellant’s assignments of error each raise the issue of the

effectiveness of trial counsel, we will address them simultaneously.

                                            II. Analysis

       {¶ 16} In appellant’s assignments of error, she argues that her trial counsel

provided ineffective assistance. To demonstrate ineffective assistance of counsel,

appellant must first show that trial counsel’s representation “fell below an objective

standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Because “effective assistance” may involve different

approaches or strategies, our scrutiny of trial counsel’s performance “must be highly

deferential” with a “strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989), quoting Strickland at 689. Should appellant demonstrate her trial

counsel’s performance was defective, appellant must also demonstrate that prejudice

resulted. Bradley at paragraph two of the syllabus.

       {¶ 17} Here, appellant argues that her trial counsel rendered ineffective assistance

in two ways. First, appellant contends that trial counsel should not have allowed her to

testify at the suppression hearing as to mitigating reasons for her traffic stop. Second,

appellant asserts that trial counsel should have introduced evidence as to the broken

condition of the breathalyzer machine at the suppression hearing in order to undermine

the credibility of the breathalyzer test.




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       {¶ 18} As to her first argument, appellant contends that “by offering testimony to

mitigate the reason for the observed behavior by the Trooper, Ms. Taylor admitted to the

behavior that led to the stop itself. In the context of a suppression hearing, this testimony

only served to harm Ms. Taylor by virtually guaranteeing the motion to suppress would

be denied.”

       {¶ 19} During the suppression hearing held in this case, appellant provided the

following testimony to explain why she stopped abruptly at a traffic light prior to the

initiation of the traffic stop:

               Q: April, you heard the officer’s testimony. That was the night of

       February 23rd. Do you recall that evening?

               A: Yes.

               Q: And could you see the video as well?

               A: Yes. I’ve watched it several times.

               Q: And was that you driving the vehicle southbound on Central

       Avenue – I’m sorry. Or Secor Road?

               A: Yes.

               Q: Okay, April. And is there anything about your vehicle – did you

       see the rocking portion of the vehicle?

               A: Yes.

               Q: And is there anything, about your vehicle, that would make it

       behave in that manner?




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              A: This was my maybe fourth time driving this vehicle. My

       previous vehicle was taken, from me, for the previous pullover situation. I

       just got my license back, and did this vehicle, because I had no other

       choice. This vehicle has issues with the shocks. The rear shocks and the

       front shocks. I could only afford to get one done at a time. So the back

       was more important to get done. So I did the back shocks. And the vehicle

       also has an issue with the wheel alignment, which I couldn’t get fixed until

       after I got the first set in the front shocks done. Otherwise, it would be

       pointless to get the alignment done. So I have an alignment issue with the

       vehicle. And it’s also an eight-cylinder engine vehicle. I’m used to driving

       four or a six-cylinder engine. So that engine is very big compared to what

       I’m used to driving. But I have no choice.

              Q: So does it stop like that frequently?

              A: All the time. Even as driving, any bump, any piece in the street,

       it bounces up and down. Any go/stop position it bounces all the time.

Appellant went on to testify as to why she weaved once she passed through the

intersection and continued on Secor Road, explaining that she was attempting to avoid

potholes and had spilled a drink inside her vehicle.

       {¶ 20} After reviewing the entire record, including the foregoing testimony, we do

not find that trial counsel’s decision to call appellant to testify at the suppression hearing

rises to the level of deficient performance. “The decision whether to call a defendant as a




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witness falls within the purview of trial tactics,” State v. Adkins, 144 Ohio App.3d 633,

646, 761 N.E.2d 94 (12th Dist.2001), and “[d]ebatable trial tactics generally do not

constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72, 85, 656

N.E.2d 643 (1995).

       {¶ 21} Relevant to the issue raised by appellant, the Supreme Court of Ohio has

stated that “[d]efendants have ‘a fundamental and a personal right’ to testify, which is

‘waivable only by an accused.’” State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-

4751, 23 N.E.3d 1096, ¶ 257, quoting State v. Bey, 85 Ohio St.3d 487, 499, 709 N.E.2d

484 (1999). Further, in the context of a similar ineffective assistance argument, we have

held that “the decision whether to take the stand ultimately rests with the defendant.”

State v. Driftmyer, 6th Dist. Ottawa No. OT-16-021, 2017-Ohio-4016, ¶ 23, citing State

v. Turner, 6th Dist. Wood No. WD-11-025, 2012-Ohio-3863, ¶ 45.

       {¶ 22} Moreover, we find that the testimony provided by appellant at the

suppression hearing did not influence the trial court’s decision to deny the motion to

suppress, and thus did not prejudice appellant. Notably, the trial court explained its

reasoning behind denying appellant’s motion to suppress on the record, as follows:

              Yeah. I saw the lights rock. Whether I saw a Marked Lanes

       violation or not, I’m not sure. To be honest with you, I’m not holding

       either of those two things against you. When I drive down that narrow

       [road], I commit a Marked Lanes violation, okay? So short of you being –

       weaving all over the road, that to me isn’t the basis for the stop here. You




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       jerking forward and coming back, whether it was because of your shocks or

       whether it was because you were traveling a hundred miles an hour, I’m not

       taking that into consideration as to the stop. I’m purely looking at the

       speed. * * * So every explanation that you gave for why these things

       happened, you still can’t get around, in my opinion, the speed. And I have

       to look at this in the totality of the circumstances. And like I said, even if I

       throw out the Marked Lanes, and throw out the abrupt stop, I don’t see how

       you get [past] the speed. So at this point, I’m going to deny the Motion to

       Suppress.

       {¶ 23} In light of the foregoing, it is clear that the trial court found that Mull had

reasonable suspicion to initiate a traffic stop in this case based upon appellant’s speeding

infraction, not the rocking of appellant’s vehicle or her alleged marked lanes violation.

Consequently, the outcome of the proceedings, namely the denial of appellant’s motion to

suppress, would have remained the same even without appellant’s mitigation testimony.

       {¶ 24} Next, we turn to appellant’s second argument concerning trial counsel’s

failure to introduce evidence of the condition of the breathalyzer machine at the

suppression hearing. As noted in our recitation of the facts above, appellant’s argument

in support of her motion to suppress was limited to the claim that Mull did not have a

reasonable, articulable suspicion of criminal activity to warrant his initiation of the traffic

stop that gave rise to appellant’s citation. Clearly, the breathalyzer test, which was

conducted after the traffic stop was well underway, did not contribute to Mull’s decision




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to stop appellant’s vehicle. Thus, evidence that might have undermined the accuracy of

the results of the breathalyzer test would have been irrelevant (and therefore

inadmissible) to the trial court’s examination of appellant’s argument challenging

whether the traffic stop was justified by reasonable suspicion. Upon due consideration of

appellant’s argument, we find that trial counsel properly limited the presentation of

evidence to the issues raised in appellant’s motion to suppress.

       {¶ 25} In short, appellant has failed to demonstrate that trial counsel’s conduct at

the suppression hearing was deficient or prejudicial. Therefore, we find that appellant

has not demonstrated that her trial counsel rendered ineffective assistance of counsel.

Accordingly, appellant’s assignments of error are not well-taken.

                                     III. Conclusion

       {¶ 26} In light of the foregoing, the judgment of the Toledo Municipal Court is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                              Toledo v. Taylor
                                                              C.A. Nos. L-19-1205
                                                                        L-19-1206




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Gene A. Zmuda, P.J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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