[Cite as State v. Smith, 2014-Ohio-2604.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13 CA 27
KEVIN MICHAEL ROBERT SMITH

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Guernsey County Court of
                                               Common Pleas, Case No. 13-CR-63


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 16, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


DANIEL G. PADDEN                               RONALD C. COUCH
BRYAN C. CONAWAY                               121 West Eighth Street
Guernsey County Prosecuting Attorney           Cambridge, Ohio 43725
139 West 8th Street
Cambridge, Ohio 43725
Guernsey County, Case No. 13 CA 27                                                     2

Hoffman, P.J.


      {¶1}   Defendant-appellant Kevin Michael Robert Smith appeals his conviction

entered by the Guernsey County Court of Common Pleas. Plaintiff-appellee is the state

of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   On April 4, 2013, officers of the Muskingum County Sheriff's Department

executed a search warrant at 7292 Voytko Lane, Byesville, Ohio. The owner of the

home gave the officers permission to enter the premises. The officers ordered all of the

people in the home outside, including Appellant.     Upon entering the residence, the

officers saw items in plain view consistent with the manufacture of methamphetamine.

      {¶3}   Appellant was interviewed by investigating officers twice on audio tape at

the scene of the arrest and once on video at the Guernsey County Justice Center.

Appellant claims he told an arresting officer he was willing to confess to making

methamphetamine, because he was told by an officer at the scene of the arrest, "You're

a piece of shit for letting your girlfriend go down and take the blame for manufacturing

meth here tonight."

      {¶4}   Appellant was indicted for the illegal manufacture of drugs, in violation of

R.C. 2925.04(C)(2)(b), a felony of the first degree, with a specification at the time he

was located within 1000 feet of a juvenile.

      {¶5}   On June 24, 2013, Appellant filed a motion to suppress his statements

made to the arresting officers. The trial court conducted a hearing on the motion to

suppress on July 10, 2013. The trial court denied Appellant's motion to suppress via

Judgment Entry of July 12, 2013.
Guernsey County, Case No. 13 CA 27                                                         3


       {¶6}   Following a jury trial, Appellant was found guilty of the charge, and

sentenced accordingly.

       {¶7}   Appellant appeals, assigning as error:

       {¶8}   "I. THE TRIAL COURT'S DECISION WAS AGAINST BOTH THE

SUFFICIENCY AND THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶9}   "II. THE APPELLANT WAS DENIED HIS RIGHT OF A FAIR TRIAL

BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶10} "III. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE

APPELLANT'S STATEMENTS GIVEN TO THE POLICED [SIC] IN VIOLATION OF HIS

MIRANDA RIGHTS."

                                                III.

       {¶11} We will begin by addressing Appellant's third assignment of error, as we

find it correlates with our disposition of Appellant's first and second assigned errors.

       {¶12} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court

failed to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. State v.

Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings

of fact are not against the manifest weight of the evidence and it has properly identified
Guernsey County, Case No. 13 CA 27                                                      4


the law to be applied, an appellant may argue the trial court has incorrectly decided the

ultimate or final issue raised in the motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court's conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.”

       {¶13} Appellant asserts the trial court erred in denying his motion to suppress

statements made to the arresting officers because he did not knowingly, intelligently and

voluntarily confess to the manufacture of methamphetamine.           Appellant asserts his

statements were coerced due to the officers' statement belittling him for allowing his

girlfriend to take the blame for the illegal manufacture of the drugs.

       {¶14} Our inquiry is whether Appellant knowingly and intelligently waived the

rights delineated in Miranda v. Arizona, 384 U.S. 436 (1966). The question of waiver

must be determined by looking to "the particular facts and circumstances surrounding

the case." Johnson v. Zerbst, 304 U.S. 458 (1938). Whether a confession is voluntary

is an issue independent of whether there was formal compliance with Miranda. State v.

Chase, 55 Ohio St. 2d 237 (1978). The burden is on the prosecution to show that,

considering the totality of the circumstances, the confession was voluntarily given.

Medina v. California 505 U.S. 437 (1992).
Guernsey County, Case No. 13 CA 27                                                      5


       {¶15} Appellant asserts he confessed because he thought he had a deal with

the detective before he made the statement. Further, Appellant implies his confession

was not knowing, intelligent and voluntary because his brother testified Appellant was

intoxicated at the time he made the statements.

       {¶16} Upon review of the record, Appellant signed two Miranda waivers

including language, "no promises or threats have been made to me." Further, Appellant

testified at the suppression hearing no direct promises or deals had been made to him

in exchange for his confession.

       {¶17} Appellant's brother testified as to Appellant's "intoxication" at the time in

question. However, there is no other indication in the record of Appellant having been

intoxicated, and Appellant himself did not assert he was intoxicated at the time the

statements were made to the officers.

       {¶18} Appellant's brother testified at the suppression hearing,

       {¶19} "A. I've got a relationship with Jason Mackie from Noble County when he

used to work down there, so I already knew him.

       {¶20} "Went down to see what was happening, and he proceeded to tell me

what the case was he was working, Kevin was involved, this and that. And he wanted

to help Kevin and wanted Kevin to help himself.

       {¶21} "Q. He told you that he wanted to help Kevin?

       {¶22} "A. Yeah.

       {¶23} "Q. All right. Why?

       {¶24} "A. Well, he gave me the old, you know, Kevin's got to help himself and

we'll help him out and this and that.
Guernsey County, Case No. 13 CA 27                                                      6


       {¶25} "Q. Is Kevin present during that conversation?

       {¶26} "A. I don't think he was in the beginning, but he was when I was coaxing

him to go in and talk to Mackie after that conversation. When he got there, he was - -

he was intoxicated. I mean, he was - - his head wasn't right and he didn't know what to

do, and I told him he needed to go in and help himself."

       {¶27} Tr. at 50.

       {¶28} We find Appellant's brother's testimony standing alone insufficient to

demonstrate Appellant was so intoxicated so as to render his statement involuntarily,

unknowingly, or unintelligently made.

       {¶29} Based upon the foregoing, we do not find the trial court erred in denying

Appellant's motion to suppress. There is nothing to establish Appellant's statements to

the arresting officers were made other than knowingly, intelligently and voluntarily.

       {¶30} The third assignment of error is overruled.

                                                I.

       {¶31} Appellant's first assignment of error maintains his conviction for the

manufacture of methamphetamine is against the manifest weight and sufficiency of the

evidence. We disagree.

       {¶32} The concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d

380, 678 N.E.2d 541 (1997). The standard of review for a challenge to the sufficiency of

the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at

paragraph two of the syllabus, in which the Ohio Supreme Court held,
Guernsey County, Case No. 13 CA 27                                                       7


      {¶33} An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a reasonable

doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

      {¶34} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

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

      {¶35} Based upon our analysis and disposition of Appellant's third assigned

error, we find Appellant's conviction is not against the manifest weight nor sufficiency of

the evidence due to his confession to the manufacture of methamphetamine and the

other evidence as set forth in The Statement of the Facts, supra.

       {¶36} The first assignment of error is overruled.
Guernsey County, Case No. 13 CA 27                                                      8


                                               II.

       {¶37} Appellant's second assigned error asserts the ineffective assistance of trial

counsel. Specifically, Appellant maintains his trial counsel was ineffective in failing to

call his girlfriend as a witness.

       {¶38} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’" Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).

       {¶39} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶40} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶41} Again, based upon our analysis and disposition of Appellant's third

assigned error, we find Appellant has not demonstrated actual prejudice as a result of
Guernsey County, Case No. 13 CA 27                                                       9


the alleged failure of trial counsel to call Appellant's girlfriend as a witness. Appellant

confessed to the manufacture of methamphetamine, and Appellant has not

demonstrated how the testimony of his girlfriend would have effected the outcome of the

trial.

         {¶42} The second assignment of error is overruled.

         {¶43} Appellant's conviction entered by the Guernsey County Court of Common

Pleas is affirmed.

By: Hoffman, P.J.

Gwin, J. and

Baldwin, J. concur
