[Cite as State v. Abass, 2017-Ohio-7034.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                      :   Hon. W. Scott Gwin, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 2016CA00200
                                                :
 YUNAS A. ABASS                                 :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Massillon Municipal
                                                    Court, Case No. 2016-TRC-02464



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             July 31, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 ROBERT A. ZEDELL                                   JUDITH M. KOWALSKI
 Massillon Law Department                           333 Babbitt Road Suite 323
 Two James Duncan Plaza                             Euclid, OH 44123
 Massillon, OH 44646
Stark County, Case No. 2016CA00200                                                           2



Delaney, P.J.

       {¶1} Appellant Yunas A. Abass appeals from the October 13, 2016 Journal Entry

and Order of the Massillon Municipal Court. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following evidence is adduced from the transcript of appellant’s court

trial. Appellee’s exhibits in the record include a DVD of the traffic stop, a certified copy of

appellant’s prior out-of-state O.V.I. conviction, the B.M.V. 2255 form signed by appellant,

the B.A.C. Datamaster test form, and the evidence ticket generated by the Datamaster.

       {¶3} This case arose on April 9, 2016 when Trooper Whitacre of the Ohio State

Highway Patrol observed a vehicle traveling in excess of the posted speed limit of 45

miles per hour southbound on Everhard Road in Jackson Township, Stark County.

Whitacre checked his estimate with radar and established the vehicle’s speed was 57

miles per hour.

       {¶4} Whitacre performed a traffic stop and learned the vehicle was driven by

appellant, the sole occupant.       The trooper requested appellant’s license, vehicle

registration, and proof of insurance. Appellant responded that he lived “right there,”

pointing to a location across the street and Whitacre repeated his request. Appellant then

rummaged in the glove compartment, allowing the vehicle to roll forward to the extent that

the trooper had to step out of the way to avoid having his foot run over.

       {¶5} Whitacre noticed a strong odor of an alcoholic beverage emanating from

the vehicle and then directly from appellant once he was out of the vehicle. Appellant’s

eyes were bloodshot and glassy. Whitacre asked appellant how much he had to drink

that evening; appellant at first said nothing, then said “not much,” and later admitted to
Stark County, Case No. 2016CA00200                                                          3


consuming a bottle of wine approximately one hour before the traffic stop.1 When asked

where he was coming from, appellant said he was “just out.”

       {¶6} Whitacre asked appellant to submit to a series of standardized field sobriety

tests and appellant complied. Whitacre has been trained and certified in administering

these tests in compliance with N.H.T.S.A. guidelines. Whitacre observed six out of six

possible clues of impairment in appellant’s eyes on the horizontal gaze nystagmus test.

On the walk and turn test, appellant failed to maintain his starting position, took steps

forward, counted inconsistently, and made an improper turn. On the one-leg stand test,

appellant swayed from side to side and put his foot down and his arm out for balance.

Based upon appellant’s performance on the tests, his admission to drinking, and the other

clues he observed, Whitacre arrested appellant for O.V.I.

       {¶7} Whitacre recalled that appellant was unusually distraught when he was

placed under arrest and seated in the rear of the patrol car. Appellant composed himself

by the time they reached the State Highway Patrol post. Whitacre learned appellant had

a prior O.V.I. conviction in Michigan which had not at first appeared on appellant’s driving

record. At the post, Whitacre read the B.M.V. 2255 form to appellant, informing him of

the consequences of refusal to take a chemical test. Appellant was offered a breath test

and refused.

       {¶8} Upon cross-examination, Whitacre was asked whether he offered appellant

a portable breath test, or P.B.T., at the scene of the traffic stop. Whitacre testified he did

in fact offer appellant a P.B.T. but appellant became “upset” and refused to take it.




1Appellant disputes this statement and testified he did not tell the trooper he drank an
entire bottle of wine.
Stark County, Case No. 2016CA00200                                                       4


       {¶9} Appellant testified on his own behalf at trial.      Appellant is a reservoir

engineer who is in the area for temporary work; his wife and children live out of state.

English is not his first language and he said there may have been misunderstandings in

his conversation with the trooper. He said he ate dinner at Jerzee’s Pub a short distance

away and was stopped almost directly in front of his residence. He was extremely

nervous when he spoke with the trooper because of his recent O.V.I. conviction in

Michigan; he was not permitted to drink alcoholic beverages as a result of his probation

on that case. Appellant said his nervousness caused him to let his foot off the brake when

the vehicle rolled slightly. Appellant testified he was distraught about the arrest because

he was worried about the implications of drinking on the Michigan case.

       {¶10} Appellant testified he told the trooper he drank a glass of wine, not a bottle

of wine. He further testified he is diabetic and has recently lost 40 pounds.

       {¶11} Appellant was charged by uniform traffic ticket (U.T.T.) with one count of

O.V.I. pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, and one

count of speeding pursuant to R.C. 4511.21(C), a minor misdemeanor.              Appellant

appeared at arraignment with counsel and entered pleas of not guilty. Counsel thereafter

was permitted to withdraw and appellant retained new counsel. New counsel filed a

motion to suppress on May 9, 2016 and a suppression hearing was scheduled for June

1, 2016.

       {¶12} The record indicates that a pretrial was held on June 1, 2016, but not a

suppression hearing. A “Pretrial Order” from that date notes that, e.g., appellant withdrew

the motion to suppress and appellee was granted leave to amend the U.T.T. to reflect the

prior O.V.I. conviction.
Stark County, Case No. 2016CA00200                                                       5


       {¶13} On June 20, 2016, a third attorney entered a notice of appearance as

defense counsel.

       {¶14} On September 28, 2016, appellee amended the U.T.T. to add a violation of

R.C. 4511.19(A)(2), a “refusal” O.V.I. with a prior conviction within 20 years.

       {¶15} On October 13, 2016, appellant appeared with defense trial counsel and

waived his right to trial by jury. The matter proceeded to court trial. Appellant moved for

judgments of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and

at the close of all of the evidence but the motions were overruled. The trial court found

appellant guilty as charged and sentenced him to 10 days in the Stark County Jail and 60

days on electronically-monitored house arrest, in addition to alcohol treatment and other

standard O.V.I. penalties.

       {¶16} Appellant now appeals from the October 13, 2016 Journal Entry and Order

of his conviction and sentence.

       {¶17} Appellant raises four assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶18} “I.   APPELLANT’S RIGHT TO BE FREE FROM UNREASONABLE

SEARCHES AND SEIZURES UNDER THE FOURTH AMENDMENT TO THE U.S.

CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION WAS

VIOLATED WHEN THE POLICE CONDUCTED AN INVESTIGATORY STOP WITHOUT

PROBABLE CAUSE.”

       {¶19} “II. THE FINDING OF GUILTY IS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.”
Stark County, Case No. 2016CA00200                                                        6


       {¶20} “III.   THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT IN DENYING THE MOTION FOR DISMISSAL PURSUANT TO RULE 29

OF THE OHIO RULES OF CRIMINAL PROCEDURE IN THAT THE EVIDENCE

PRESENTED WAS INSUFFICIENT AS A MATTER OF LAW.”

       {¶21} “IV.    THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS.”

                                       ANALYSIS

                                             I.

       {¶22} In his first assignment of error, appellant argues the traffic stop was not

supported by probable cause. Because this issue was not properly raised in the trial court

via a motion to suppress, we disagree.

       {¶23} Appellant argues the de minimis traffic violation did not justify the prolonged

investigative stop resulting in the O.V.I. arrest. As appellant acknowledges, this argument

was raised in a motion to suppress which was later withdrawn.

       {¶24} The record does not indicate why the suppression motion was withdrawn.

Ohio Traff.R. 11(B)(2)(a) states motions to suppress must be made before trial.

Appellant’s argument here is premised upon the argument made in the withdrawn motion

to suppress, which we cannot consider because the argument was never properly before

the trial court. We have previously stated we will not speculate as to what evidence may

have been developed at a suppression hearing that never took place. State v. Shepherd,

5th Dist. Richland No. 14CA63, 2015-Ohio-4330, ¶ 41.

       {¶25} In the case of State v. Parkinson, 5th Dist. Stark No.1995CA00208,

unreported, 1996 WL 363435 (May 20, 1996) at *3, we observed that when counsel fails
Stark County, Case No. 2016CA00200                                                       7


to file a motion to suppress, the record developed at trial is generally inadequate to

determine the validity of the suppression motion. This reasoning is applicable to the case

sub judice because based on the record, it is unclear whether appellant’s argument would

have been successful. State v. Culbertson, 5th Dist. Stark No. 2000CA00129, 2000 WL

1701230, *4 (Nov. 13, 2000).        See also, State v. Hoover, 5th Dist. Stark No.

2001CA00138, 2001–Ohio–1964.

       {¶26} We are generally reluctant to attempt to redress an appellate argument

seeking to demonstrate a motion to suppress would have been granted by the trial court

where such an argument essentially speculates as to evidence dehors the record. State

v. Dowding, 5th Dist. Stark No.2014 CA 00131, 2015–Ohio–1362, ¶ 53, citing State v.

Jackson, 5th Dist. Stark No.2005CA00198, 2006–Ohio–4453, ¶ 27. The same is true in

the instant case.

       {¶27} Appellant’s first assignment of error is overruled.

                                              II., III.

       {¶28} Appellant’s second and third assignments of error are related and will be

considered together. Appellant argues his O.V.I. conviction is against the manifest weight

and sufficiency of the evidence. We disagree.

       {¶29} The legal 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,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. 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, “An appellate court’s function when reviewing the sufficiency of the
Stark County, Case No. 2016CA00200                                                         8


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.”

       {¶30} 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, 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.

       {¶31} Appellant was convicted of O.V.I. pursuant to R.C. 4511.19(A)(1)(a) and

(A)(2). Those sections state in pertinent part:

                     (A)(1) No person shall operate any vehicle, streetcar, or

              trackless trolley within this state, if, at the time of the operation, any

              of the following apply:

                     (a) The person is under the influence of alcohol, a drug of

              abuse, or a combination of them.

                     * * * *.
Stark County, Case No. 2016CA00200                                                         9


                    (2) No person who, within twenty years of the conduct

             described in division (A)(2)(a) of this section, previously has been

             convicted of or pleaded guilty to a violation of this division, a violation

             of division (A)(1) or (B) of this section, or any other equivalent offense

             shall do both of the following:

                    (a) Operate any vehicle, streetcar, or trackless trolley within

             this state while under the influence of alcohol, a drug of abuse, or a

             combination of them;

                    (b) Subsequent to being arrested for operating the vehicle,

             streetcar, or trackless trolley as described in division (A)(2)(a) of this

             section, being asked by a law enforcement officer to submit to a

             chemical test or tests under section 4511.191 of the Revised Code,

             and being advised by the officer in accordance with section 4511.192

             of the Revised Code of the consequences of the person's refusal or

             submission to the test or tests, refuse to submit to the test or tests.

       {¶32} Appellant argues the trooper arrested him based upon his failure on the

standardized field sobriety tests, but claims his performance on the tests may have been

affected by health conditions such as diabetes. Appellant did not advise the trooper of

any health conditions which would negatively affect his performance during the stop, and

there is no evidence in the record of any health condition alleged by appellant other than

his own testimony. Nor is there evidence of the effect of any such health condition on the

field sobriety tests, other than appellant’s self-serving speculation. We also note the
Stark County, Case No. 2016CA00200                                                         10


record is replete with evidence supporting the trooper’s decision to arrest, independent of

the field sobriety tests.

       {¶33} Appellant further argues that his alleged admission of drinking a “bottle” of

wine is belied by the video, which has technical problems including mismatched audio

and video. The trial court was in the best position to evaluate the video and the credibility

of the witnesses and to determine what amount appellant admitted to drinking. The

weight of the evidence and the credibility of the witnesses are determined by the trier of

fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶

79.

       {¶34} Appellant argues, though, that the poor quality of the videotape creates

discrepancies in the evidence. We have reviewed the DVD and we agree it is of limited

evidential value, but the poor quality of one piece of appellee’s evidence does not render

appellant’s conviction against the manifest weight or sufficiency of the evidence. In State

v. Moore, 5th Dist. Stark No. 98-CA-00324, 1999 WL 770746, at *2, the appellant

“disparaged” a video, arguing it was of poor quality and did not depict appellant’s actions

as alleged by the state. We concluded the factfinder was given the opportunity to view

the video, as well as to assess all the other testimony and evidence presented. Id. In

Moore, as in the instant case, our review of the record leads us to conclude the trial court

did not clearly lose its way, but rather, there is sufficient, competent and credible evidence

in support of each of the elements of the crime charged to entitle a reasonable finder of

fact to conclude appellant was guilty beyond a reasonable doubt.
Stark County, Case No. 2016CA00200                                                         11


       {¶35} We find the trial court’s verdict was supported by sufficient evidence and

was not against the manifest weight of the evidence. Appellant’s second and third

assignments of error are overruled.

                                                 IV.

       {¶36} In his final assignment of error, appellant argues he received ineffective

assistance of trial counsel. We disagree.

       {¶37} 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). “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.

       {¶38} 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.
Stark County, Case No. 2016CA00200                                                       12


       {¶39} Appellant first argues defense trial counsel was ineffective in withdrawing

the motion to suppress and/or in failing to renew the motion to suppress after substitute

counsel became involved. We disagree. A 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. Umstead, 5th Dist. Holmes No. 16 CA 004, __N.E.3d__, 2017-Ohio-

698, ¶ 40, citing State v. Shepherd, 5th Dist. Richland No. 14CA63, 2015-Ohio-4330,

2015 WL 5917918, ¶ 39 and State v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d

1077 (3rd Dist.1996).

       {¶40} As we observed in our discussion of appellant’s first assignment of error, it

is not possible to determine from a trial record whether a suppression motion would have

been successful. Furthermore, we must presume a properly licensed attorney executes

his or her duties in an ethical and competent manner. See State v. Smith, 17 Ohio St.3d

98, 100, 477 N.E.2d 1128 (1985). Under the circumstances presented, we are not inclined

to overcome this presumption with the limited information in the appellate record before

us.

       {¶41} Appellant further argues defense trial counsel was ineffective because he

was silent “during crucial testimony.” Specifically, appellant cites debate between the

prosecutor, trooper, and trial court as to when or if appellant denied he had a prior O.V.I.

conviction during the traffic stop. Appellant infers his credibility was impugned and

defense counsel should have objected, although he fails to provide the basis for such an

objection. The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel. State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136 (1999), citing State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831 (1988). The
Stark County, Case No. 2016CA00200                                                      13


defendant must also show that he was materially prejudiced by the failure to object.

Holloway, 38 Ohio St.3d at 244.

       {¶42} Even if counsel had objected to this conversation, the outcome of the trial

would not have been different. Despite appellant’s focus on the video quality and whether

certain statements were made during the stop, the totality of the evidence against

appellant is compelling. The evidence was heard by the trial court, not a jury, and the

judge was able to evaluate the video and the witnesses’ credibility.

       {¶43} Appellant has not established that but for any alleged error of trial counsel,

he would not have been found guilty of O.V.I.        Appellant thus has not established

ineffective assistance of counsel and his fourth assignment of error is overruled.

                                     CONCLUSION

       {¶44} Appellant’s four assignments of error are overruled and the judgment of the

Massillon Municipal Court is affirmed.

By: Delaney, P.J.,

Gwin, J. and

Wise, Earle, J., concur.
