[Cite as State v. Richter, 2017-Ohio-1347.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. William B. Hoffman, J.
-vs-
                                                  Case No. 16-CA-67
JOSEPH RICHTER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Municipal
                                               Court, Case No. 16-TRC-0061


JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                        April 10, 2017




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

MARK D. GARDNER                                KEVIN J. GALL
Utica Prosecutor                               Burkett & Sanderson, Inc.
18 North 2nd Street, Suite 201                 73 North 6th Street
Newark, Ohio 43055                             Newark, Ohio 43055
Licking County, Case No. 16-CA-67                                                        2

Hoffman, J.




       {¶1}   Defendant-appellant Joseph Richter appeals his conviction entered by the

Licking County Municipal Court on one count of operating a vehicle while intoxicated.

Plaintiff-Appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 24, 2016, at 1:07 a.m., Patrolman Joshua Jones of the Utica

Police Department observed Appellant travelling north on State Route 13 in Utica, Ohio.

Patrolman Jones observed Appellant cross over the white fog line, and weave over to the

double yellow centerline. Appellant continued to weave in his lane of travel. Patrolman

Jones saw Appellant's turn signal was on, about a mile from the nearest turn. Appellant

deactivated the turn signal, and activated high beams then turned them off. Patrolman

Jones initiated a traffic stop.

       {¶3}   Upon approaching the vehicle, Patrolman Jones noticed an overwhelming

odor of alcohol and Appellant's visible intoxication, slurring his speech and glossy

bloodshot eyes. Both Appellant and his wife, the passenger in the vehicle, were visibly

intoxicated. Patrolman Jones inquired as to whether Appellant had been drinking alcohol,

to which Appellant "hung his head" and said, "Yes, I have been drinking."

       {¶4}   Appellant was asked to step out of the vehicle, and was very unsteady on

his feet, leaning on the cruiser. Patrolman Jones asked Appellant to perform field sobriety

tests. Appellant claims to have refused, stating he would fail the tests.

       {¶5}   Patrolman Jones testified he performed the tests on Appellant, including the

horizontal gaze nystagmus test, observing six of the six clues for intoxication. He then
Licking County, Case No. 16-CA-67                                                            3


had Appellant perform further field sobriety tests, observing four of the eight clues for

intoxication. Appellant could not complete the one-legged stand test, with Patrolman

Jones observing two of the four clues. Patrolman Jones then placed Appellant under

arrest for OVI.

         {¶6}   Patrolman Jones was not certified to perform the BAC Datamaster test, and

asked for assistance from the Licking County Sheriff's Department. Deputy Barth

Waldeck met Patrolman Jones with Appellant at the Utica Police Department. Appellant

advised Patrolman Jones he would refuse the chemical testing. Patrolman Jones

provided Appellant with a copy of BMV 2255, and Jones verbally read the document to

Appellant. Patrolman Jones advised Appellant, due to his prior convictions for OVI within

the previous twenty years, he was mandated to submit to chemical testing and failure to

do so would have consequences.1 Appellant refused to sign the BMV 2255. Deputy

Waldeck proceeded to process the refusal through the BAC Datamaster. Appellant was

transferred to jail.

         {¶7}   Following a jury trial, Appellant was found guilty of OVI, in violation of R.C.

4511.19(A)(1), and a marked lanes violation, in violation of R.C. 4511.33. The trial court

sentenced Appellant to a jail term in addition to imposing fines and costs.

         {¶8}   Appellant appeals, assigning as error:

         {¶9}   “I. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.




1
    Appellant had two prior convictions for OVI in 1999, and 2001.
Licking County, Case No. 16-CA-67                                                             4


       {¶10} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN SUSTAINING

THE STATE'S OBJECTION TO DEFENSE COUNSEL'S LINE OF QUESTIONING

REGARDING PATROLMAN JONES' EMPLOYMENT STATUS.”

                                                  I.

       {¶11} In the first assignment of error, Appellant maintains his trial counsel was

ineffective in failing to call Amanda Richter, Appellant's wife and the passenger in the

vehicle, as a witness for the defense to corroborate his claim he did not perform field

sobriety tests.

       {¶12} The standard for reviewing claims for ineffective assistance of counsel was

set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674(1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a claim

for ineffective assistance of counsel.

       {¶13} First, we must determine whether counsel's assistance was ineffective; i.e.,

whether counsel's performance fell below an objective standard of reasonable

representation and volatile of any of his essential duties to the client. If we find ineffective

assistance of counsel, we must then determine whether the defense was actually

prejudice by counsel's ineffectiveness such that the reliability of the outcome of the trial

is suspect. This requires a showing that there is a reasonable probability that but for

counsel's unprofessional error, the outcome of the trial would have been different.

       {¶14} A defendant claiming the ineffective assistance of trial counsel must submit

evidentiary material containing sufficient operative facts demonstrating a substantial

violation of any of defense counsel's essential duties to his client and prejudice arising
Licking County, Case No. 16-CA-67                                                              5

from counsel's ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 714 NE.2d 905,

1999 Ohio 102. Decisions which constitute trial strategy do not generally rise to the level

of ineffective assistance of counsel. A reviewing court must adopt a deferential attitude

toward strategic and tactical decisions made as part of trial strategy. State v. Griffie, 74

Ohio St.3d 332, 658 N.E.2d 764 (1996); State v. Dixon, Muskingum App. No. CT2013-

0055, 2014-Ohio-4235.

         {¶15} Appellant maintains his wife was present at the scene, and could have

testified as to the traffic stop and his performance or non-performance of the field sobriety

tests.    Appellant maintains he refused to submit to any field sobriety testing, while

Patrolman Jones testified as to Appellant's performance on the tests.

         {¶16} The record demonstrates Amanda Richter was visibly intoxicated during the

stop, and was very unsteady on her feet when exiting the vehicle. Tr. at 60-61.              She

informed Patrolman Jones she and Appellant had been drinking, and Appellant himself

admitted to drinking. Appellant was cited with OVI, in violation of R.C. 4511.19(A)(1)a)

and 4511.19(A)(2).

         {¶17} The statute reads, in pertinent part,



                (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:
Licking County, Case No. 16-CA-67                                                          6


              (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.



      {¶18} Appellant has not presented or proffered for the record evidence as to the

proposed testimony of Amanda Richter. Appellant only speculates her testimony would

have corroborated his. We find Appellant has failed to demonstrate there is a reasonable

probability the outcome of the trial would have been different.

      {¶19} The first assignment of error is overruled.

                                                 II.

      {¶20} In the second assignment of error, Appellant argues the trial court abused

its discretion in sustaining the State’s objection to defense counsel's line of questioning

regarding Patrolman Jones' employment status.           Appellant maintains the trial court

committed harmful error as the evidence was relevant to the proceedings herein.

      {¶21} On cross-examination, defense counsel inquired of Patrolman Jones,
Licking County, Case No. 16-CA-67                                                         7


              Q: At this point in time are you required to have another officer in

       your vehicle?

              A: No.

              Q: Okay has your status with the Utica Police Department changed

       since this arrest?

              A: It has.

              Q: Okay what is that change?

              MR. GARDNER: I object as to relevance.

              THE COURT: Approach.

              (A brief pause while the counsel is at the bench, off record. Following

       the pause at the bench, the following proceedings were held.)

              THE COURT: I will sustain the objection.

       Tr. at 77.



       {¶22} The admission or exclusion of relevant evidence is a matter left to the sound

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice

to the defendant, a reviewing court should be reluctant to interfere with a trial court's

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967)

citing State v. Sage (1987), 31 Ohio St.3d 173. Appellant did not proffer the testimony

nor indicate what the testimony would have established though admittedly not required to

do so because it was on cross-examination. Based on the record presented, we find the

trial court did not abuse its discretion in excluding this testimony.

       {¶23} The second assignment of error is overruled.
Licking County, Case No. 16-CA-67                                                8


      {¶24} Appellant's conviction entered by the Licking County Municipal Court is

affirmed.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur
