[Cite as State v. Eberly, 2012-Ohio-6363.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :     JUDGES:
                                              :
                                              :     Hon. Patricia A. Delaney, P.J.
                     Plaintiff-Appellee       :     Hon. John W. Wise, J.
                                              :     Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :     Case No. 11AP030015
KEITH A. EBERLY                               :
                                              :
                                              :
                     Defendant-Appellant      :     OPINION



CHARACTER OF PROCEEDING:                          Appeal from the New Philadelphia
                                                  Municipal Court, Case No. TRC 1000128
                                                  A-B


JUDGMENT:                                         AFFIRMED



DATE OF JUDGMENT ENTRY:                           November 19, 2012



APPEARANCES:

For Appellant:                                      For Appellee:

ANDREW F. PECK                                      NEW PHILADELPHIA
1435 Market Ave. N.                                 PROSECUTOR’S OFFICE
Canton, OH 44714                                    158 East High Ave.
                                                    New Philadelphia, OH 44663
[Cite as State v. Eberly, 2012-Ohio-6363.]


Delaney, J.

         {¶1} Appellant Keith A. Eberly appeals from the March 10, 2011 judgment

entry of the New Philadelphia Municipal Court convicting him of one count of O.V.I.

and one count of failure to control. Appellee is the state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

         {¶2} This case arose around midnight on January 9, 2010 when E.M.T.s with

the Wayne Township Volunteer Fire Department responded to a call of a vehicle crash

with injuries on County Road 94 in Wayne Township, Tuscarawas County.                The

following facts are adduced from appellant’s bench trial.

         {¶3} E.M.T. Nick Harper and his colleagues eventually found the car involved

in the crash; it had gone over a guardrail and down an embankment toward a creek.

The car was heavily damaged and the driver, appellant, was found on the passenger

side of the car near the rear wheel, crouched down against the car. Appellant said his

back was seriously injured. Harper and his colleagues immobilized appellant on a

stretcher to stabilize his head and neck transport for to a hospital.

         {¶4} Inside the ambulance, Harper talked to appellant to determine what basic

life support was necessary.              Appellant was slow to respond and wanted to hold

Harper’s hand. Harper noticed an odor of alcohol about appellant, and asked him

whether he had consumed any alcohol that night. Appellant responded yes, a “30-

pack.”

         {¶5} Trooper Timothy Scott investigated the crash and arrived on the scene

when appellant was already in the back of the ambulance. Scott, too, noticed an odor

of alcohol about appellant. Scott did not talk to appellant at that point due to his
Tuscarawas County, Case No. 11AP030015                                                 3


injuries. He noted appellant would be transported to Aultman Hospital and proceeded

to investigate the crash scene.

       {¶6} Scott concluded appellant was driving on County Road 94 when he

drifted off the right side of the road and side-swiped a guardrail with the right side of

his car. Appellant then overcorrected his steering to the left, traveling at such a high

rate of speed that his car went up onto the guardrail on the left side of the road and

actually slid along it sideways almost 60 feet, shearing off the post of the guardrail.

The car then proceeded over the guardrail and rolled several times down the

embankment with enough speed that it bounced off a group of trees at a distance 7 to

8 feet off the ground before finally coming to rest.

       {¶7} Scott noted the roadway where this crash occurred is straight and there

are no curves. His conclusion of over-steering is based upon yaw marks left behind

on the roadway containing striations from the car’s tires sliding sideways.        Scott

testified yaw marks are caused by steering input; when a driver overcorrects and a

vehicle slides on the roadway, black marks are left behind. He distinguished yaw

marks from skid marks, which are caused by braking and don’t contain striations. Yaw

marks only occur when the roadway is dry; therefore, Scott pointed out, there was no

ice or snow on the roadway at the time of this crash. Scott also determined the car

had to have been traveling at a high rate of speed to have struck the trees at a level 7

to 8 feet off the ground instead of following the contour of the embankment.

       {¶8} Scott took photographs of the crash scene. He found an empty beer can

in the car.
Tuscarawas County, Case No. 11AP030015                                                4


        {¶9} Scott made contact with appellant in the hospital the next day. Appellant

admitted he was the driver and alone in the car.         Appellant provided a written

statement by means of Scott writing out appellant’s words which appellant then

initialed.   Appellant simply stated “I hit black ice and lost control.”   Upon further

questioning, appellant said his speed was about 40 or 50 miles per hour, there was no

other traffic on the road, he was coming from a friend’s house about two miles down

the road, and the crash occurred around 11:15 p.m. Scott asked whether appellant

had consumed any alcohol and appellant admitted that beginning at 3:00 p.m. that day

he consumed a “30-pack.”

        {¶10} Scott testified appellant’s claim of black ice was not consistent with his

investigation because no yaw marks would have been found if black ice had been on

the roadway. Scott also found appellant’s claim traveling 40 to 50 miles per hour to be

unlikely based upon the force and violence of the crash.        Scott opined appellant

operated his vehicle under the influence of alcohol for a number of reasons: the

manner in which he went off the road due to exaggerated steering maneuvers, the

roadway was straight yet appellant went off the right side, the empty beer can

indicated possible consumption while driving, the odor of an alcoholic beverage on

appellant at the scene, and appellant’s admission of consuming a “30-pack” since 3:00

p.m. that day.

        {¶11} Appellant was cited with one count of O.V.I. and one count of failure to

control. Appellant entered a plea of not guilty and the case proceeded to bench trial.

Appellee presented the testimony of Harper and Scott together with the pictures of the

crash scene and appellant’s statement. Appellant did not present any evidence on his
Tuscarawas County, Case No. 11AP030015                                                5


own behalf. At the conclusion of the trial, the court found appellant guilty as charged

and sentenced him to a term of 180 days in jail to be served as 10 days in the

Tuscarawas County Jail and 60 days on house arrest with the balance suspended

upon the condition appellant complete an assessment for alcohol abuse treatment.

Appellant’s operator’s license was suspended for three years and six points were

assessed.

       {¶12} Appellant now appeals from the judgment entry of conviction and

sentence. Appellee did not file a brief in this appeal.

       {¶13} Appellant raises two Assignments of Error:

       {¶14} “I.    APPELLANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH AND SIXTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10 OF THE OHIO CONSITUTION.”

       {¶15} “II.   THE TRIAL COURT FINDING APPELLANT GUILTY OF A

VIOLATION OF R.C. 4511.19(A)(1)(a) WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED

STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION.”

                                            I.

       {¶16} In his first assignment of error, appellant argues he received ineffective

assistance of counsel. We disagree.

       {¶17} 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.
Tuscarawas County, Case No. 11AP030015                                                6

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 100 L.Ed. 83 (1955).          “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, supra, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶18} 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.

       {¶19} Appellant first argues he received ineffective assistance of trial counsel

because counsel did not file a motion to suppress his statements to Harper and Scott.

The failure to file a suppression motion does not constitute per se ineffective

assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574,

91 L.Ed.2d 305 (1986). Failure to file a motion to suppress constitutes ineffective

assistance of counsel only if, based on the record, the motion would have been

granted. State v. Butcher, 5th Dist. No. 03 CA 4, 2004-Ohio-5572, ¶ 26, citing State v.

Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077 (3rd Dist.1996). Furthermore,
Tuscarawas County, Case No. 11AP030015                                                7


“[w]here the record contains no evidence which would justify the filing of a motion to

suppress, the appellant has not met his burden of proving that his attorney violated an

essential duty by failing to file the motion.” State v. Drummond, 111 Ohio St.3d 14, 41,

2006-Ohio-5084, 854 N.E.2d 1038, quoting State v. Gibson, 69 Ohio App.2d 91, 95,

430 N.E.2d 954 (8th Dist.1980). See also, State v. Suiste, 5th Dist. No. 2007 CA

00252, 2008-Ohio-5012; State v. Montgomery, 5th Dist. No. 2007 CA 95, 2008-Ohio-

6077.

        {¶20} Appellant argues his statements in the aftermath of the crash were not

made knowingly, voluntarily, or intelligently due to his injured condition and Scott’s

apparent failure to give him the Miranda warnings in the hospital room, therefore

counsel should have moved to suppress the statements.

        {¶21} We will review the trial testimony to determine whether appellant's

statements were unlawfully obtained to determine if a motion to suppress would have

been meritorious.

        {¶22} In regards to the statements made to EMT Harper, we find the

statements were made in response to inquiry by a first responder in order to

administer first-aid and to determine appellant’s medical condition. Appellant was

conscious and responsive to the questions. Although obviously injured and somewhat

disoriented, appellant’s statements appear voluntary and the product of free will.

        {¶23} In regards to the appellant’s statements to Tpr. Scott at the hospital, it

is well established that a defendant who is subjected to custodial interrogation must be

advised of his or her Miranda rights and make a knowing and intelligent waiver of

those rights before statements obtained during the interrogation will be admissible.
Tuscarawas County, Case No. 11AP030015                                              8

State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749 (2001). The determination

whether a custodial interrogation has occurred requires an inquiry into how a

reasonable person in the suspect’s position would have understood the situation.

State v. Biros, 78 Ohio St.3d 426. See also, State v. King, 3rd Dist. No. 16-11-07,

2012-Ohio-1281; State v. Feaster, 9th Dist. No. 24367, 2009-Ohio-2558.

       {¶24} We find appellant has not established a suppression motion on the basis

of Miranda would have been granted. The record does not reflect that appellant’s

movement was restrained in anyway nor was he informed that he was under arrest.

Appellant was conscious at the time of questioning and could reasonably have

understood what was being said to him. There is nothing in the record indicating his

responses were not voluntary. Nor does the record contain any evidence appellant’s

injuries were so serious he was incapable of making a voluntary statement. State v.

Smith, 5th Dist. No. 2007-CA-100, 2008-Ohio-2680, ¶24. Accordingly, we conclude

that the statements to Tpr. Scott at the hospital were voluntary and appellant was not

in custody. Appellant has not established a suppression motion would have been

successful and we decline to find trial counsel was ineffective.

       {¶25} Appellant further argues counsel was ineffective in failing to request a

continuance upon appellee’s alleged failure to provide a copy of Harper’s E.M.T.

report prior to trial.   We are unwilling to find counsel’s decision to proceed was

ineffective on the basis of appellant’s speculation counsel may have called additional

witnesses or used a different trial strategy if he had more time to review the report.

Both the report and the witness were made available to counsel to interview prior to
Tuscarawas County, Case No. 11AP030015                                                   9


the bench trial, and the record is devoid of any evidence the outcome of the trial would

have been different had counsel requested additional time to review the report.

       {¶26} For the foregoing reasons, we find defense trial counsel was not

ineffective, and appellant’s first assignment of error is overruled.

                                            II.

       {¶27} In his second assignment of error, appellant argues his conviction for

O.V.I. is against the manifest weight of the evidence. We disagree.

       {¶28} 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 [trier of fact] 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,

supra, 78 Ohio St.3d at 387. 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.

       {¶29} Appellant was convicted of one count of O.V.I. pursuant to R.C.

4511.19(A)(1)(a), which states in pertinent part: “No person shall operate any vehicle

* * * if, at the time of the operation, any of the following apply: [t]he person is under

the influence of alcohol, a drug of abuse, or a combination of them.”

       {¶30} Appellant argues his conviction is against the manifest weight of the

evidence because an alternative explanation exists for the crash: black ice. Appellant

further argues his statements regarding his alcohol consumption were unreliable and
Tuscarawas County, Case No. 11AP030015                                              10


no evidence exists to definitively establish he was impaired. As we have often noted,

however, the elements of an offense may be established by direct evidence,

circumstantial evidence, or both. State v. Durr, 58 Ohio St.3d 86, 92, 568 N.E.2d 674

(1991).   Circumstantial evidence is defined as “[t]estimony not based on actual

personal knowledge or observation of the facts in controversy, but of other facts from

which deductions are drawn, showing indirectly the facts sought proved.” State v.

Nicely, 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988), quoting Black’s Law

Dictionary 221 (5th Ed.1979).     Circumstantial and direct evidence are of equal

evidentiary value. State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).

      {¶31} The circumstantial evidence of appellant’s impairment is considerable.

Appellant’s theory about the cause of the crash is not supported by the physical

evidence in the record and the trial court did not lose its way in concluding appellant

was appreciably impaired at the time his vehicle struck the guardrail, went across the

roadway, and over the embankment. The investigating officer found the roadway was

dry and straight where appellant went off the road.       Appellant told two different

witnesses, one immediately after the crash and another the next day, that he

consumed a “30-pack” of beer in the hours leading up to the crash. Both witnesses

noted an odor of an alcoholic beverage emanating from him at the scene.          Even

appellant’s claim that he was only traveling 40-50 miles per hour when he went off the

road was inconsistent with the evidence of the force with which the car slid along the

top of the left guardrail, flipped over the embankment, and struck the trees. While the

beer can alone does not necessarily prove appellant was impaired, taken with his

admissions of consuming a significant amount of beer, the crash and the smell of
Tuscarawas County, Case No. 11AP030015                                              11


alcohol coming from appellant, we cannot say the trial court lost its way in convicting

appellant of O.V.I.

       {¶32} Appellant’s second assignment of error is overruled.

       {¶33} Having overruled both of appellant’s assignments of error, the judgment

of the New Philadelphia Municipal Court is hereby affirmed.

By: Delaney, P.J.

Wise, J. and

Edwards, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. JOHN W. WISE



                                       HON. JULIE A. EDWARDS




PAD:kgb
[Cite as State v. Eberly, 2012-Ohio-6363.]


           IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                     Plaintiff-Appellee        :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
KEITH A. EBERLY                                :
                                               :
                                               :   Case No. 11AP030015
                     Defendant-Appellant       :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

New Philadelphia Municipal Court is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. JOHN W. WISE



                                             HON. JULIE A. EDWARDS
