[Cite as State v. Copeland, 2016-Ohio-1537.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102952




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                              CHRISTINA COPELAND
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-592086-A

        BEFORE: Keough, J., Jones, A.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: April 14, 2016
ATTORNEY FOR APPELLANT

P. Andrew Baker
17877 St. Clair Avenue, Suite 150
Cleveland, Ohio 44110


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Thomas Anthony Miranda
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Christina Copeland, appeals her convictions. Finding

no merit to the appeal, we affirm.

       {¶2} In December 2014, Copeland was charged with assaulting a peace officer and

resisting arrest. The case was tried before a jury where the following evidence was

presented.

       {¶3} On December 17, 2014, at approximately 2:53 a.m., Brecksville Patrolman

Jeff Golem (“Golem”) was seated in his zone car along Interstate 77 North when he

observed a vehicle drive past him at a high rate of speed. He activated the zone car’s

lights and siren and followed the vehicle. He observed the vehicle veering left and then

riding the white fog line on the road; and according to the zone car’s radar, the vehicle

was traveling 98 mph in a 60 mph zone. The dashcam video was played before the jury,

and they were able to see Golem pursuing the vehicle.

       {¶4} When the vehicle finally stopped, Golem approached the driver of the

vehicle, who was identified as Copeland. According to Golem, Copeland had glassy and

bloodshot eyes, and there was an odor of alcohol emanating from inside the vehicle.

Golem testified that Copeland denied speeding or violating any law.          At that time,

additional officers and another vehicle driven by Mark Smith (“Smith”) arrived on scene.

       {¶5} Smith testified that he was driving to work on I-77 when Copeland’s car

side-swiped his vehicle, but did not stop. He stated that he tried to follow the vehicle,

but the rate of speed increased to an unsafe level. He noticed that the vehicle that hit him
was pulled over by the police; thus, he stopped to report the accident and damage.

According to Smith, he heard a lot of yelling and saw Copeland jerking her arms. He

testified that the officers were not being aggressive, but just trying to put Copeland in the

back of the police car. He admitted that the officers had to force her into the car.

       {¶6} Following a conversation with Smith, Golem noticed scrapes on Smith’s

driver’s side door and damage to the mirror, and scrapes on Copeland’s passenger side

fender. Golem requested that Copeland exit her vehicle, but she did not comply. He

testified that he had to repeat his request multiple times. The jury watched the zone car’s

dash cam video, which corroborated Golem’s testimony.

       {¶7} When Copeland finally exited her vehicle, Golem asked her to perform

various field sobriety tests. Golem testified that she failed to comply with instructions on

the Walk-and-Turn Test and the Horizontal Gaze Nystagmus Test, but complied with the

One-Leg Stand Test. Again, the jury viewed this portion of the dashcam video showing

Copeland performing these tests.

       {¶8} Based on her performance of the field sobriety tests, Golem advised

Copeland that she was under arrest for operating a motor vehicle while intoxicated

(“OVI”) and leaving the scene after an accident (“hit/skip”), and ordered her to place her

hands behind her back. According to Golem, Copeland became hostile and aggressive

and refused to comply with his requests to place her hands behind her back. Eventually

she complied; however, her obstinance continued when she then failed to comply with

repeated orders to sit in the back of the patrol car, claiming the handcuffs were too tight.
Golem assured her that the handcuffs were properly secured and gapped; however,

Copeland continued yelling and struggling.

       {¶9} Finally, Copeland was told that if she did not seat herself in the back of the

patrol car, she would be placed in the back of the patrol car. When she still failed to

comply, Golem grabbed her around the shoulder and tried to push her into the back seat

of the patrol car. According to Golem and the video taken from inside the patrol car,

Copeland became angry, hostile, and aggressive. She began kicking and would not

comply. Golem testified that Sergeant Robert Johnson (“Johnson”) was assisting him

with Copeland from one side of the car while another officer was trying to pull her into

the zone car from the other side.       Copeland continued kicking, ultimately kicking

Johnson in the face. Even after she was inside the zone car, Copeland continued to yell,

scream, and kick the back window of the police cruiser. Copeland was transported to

jail. The jury watched the dashcam video of these incidents.

       {¶10} Paul Pountney, jailer for Brecksville Police Department, testified over

objection. He told the jury about his interactions with Copeland at the jail, including that

she was screaming and uncooperative, broke the jail phone, and had to be restrained.

The jury also observed, over objection, a jailhouse video showing Copeland acting in this

manner.

       {¶11} Sergeant Johnson testified that he arrived on scene to assist Officer Golem

in the traffic stop. He spoke with Smith and observed damage to both Smith’s and

Copeland’s vehicles. Johnson testified that he interacted with Copeland when Golem
was asking her to exit her vehicle. According to Johnson, Golem asked Copeland at least

12 times to exit her vehicle. After Copeland was arrested and disobeyed Golem’s orders

to seat herself in the back of the police cruiser, Johnson assisted Golem. As Copeland

was pushed in the backseat, she started kicking at them, striking Johnson on the left side

of the face. He testified that he would have been kicked again by Copeland, but he

moved. The jury saw pictures showing scratches, dirt, and redness to Johnson’s face.

According to Johnson, Copeland was already under arrest before she refused to sit inside

the zone car.

       {¶12} Copeland testified that she did not resist arrest and was trying to comply

with the officer when he requested that she place her hands behind her back. However,

she admitted that she did not immediately comply. Copeland also admitted that she did

not sit in the zone car even though she was asked multiple times to do so, explaining they

“didn’t give [her] a chance” because she was asking the officers to loosen the handcuffs.

Copeland further admitted that she was loud, acting obnoxiously, screaming, and yelling.

However, she denied deliberately kicking Johnson and said any injuries he sustained were

not caused intentionally; rather, it was an accident because she “wasn’t thinking.”

       {¶13} The jury found her guilty of the offenses as charged.         The trial court

sentenced Copeland to 12 months in prison for assaulting a police officer and 90 days on

the resisting arrest charge.

       {¶14} Copeland now appeals, raising four assignments of error that will be

addressed out of order.
                                    Opening Statement

       {¶15} In her second assignment of error, Copeland contends that she was deprived

of a fair trial when the trial court interrupted her counsel’s opening statement, in violation

of R.C. 2315.01.

       {¶16} During opening statement, defense counsel acknowledged that there is a

natural tendency of jurors to put police officers in high regard.           The trial judge

interrupted counsel, reminding her that this was opening, not closing statement. Defense

counsel continued her statement by indicating that “the magical cloak of innocence” is not

always a reality.    The prosecutor objected and a side-bar ensued.           Following the

discussion off the record, defense counsel told the jury that each judge and courtroom

operate differently. After the judge again made a comment, defense counsel concluded

her opening statement by keeping it “short and simple because that’s what I’ve been

instructed to do.”

       {¶17} The issue on appeal is whether these interruptions interfered in such a

manner as to undermine defense counsel’s opening statement to an extent that was

prejudicial to the entire trial. We find they did not.

       {¶18} Opening statements are not evidence. Opening statements are an outline of

the case to be presented and are intended to give the jury a general idea of what each side

expects the evidence to show.       State v. Wilson, 1st Dist. Hamilton No. C-000670,

2002-Ohio-1854, citing State v. Johnson, 1st Dist. Hamilton No. C-950493, 1996 Ohio

App. LEXIS 4163 (Sept. 25, 1996); R.C. 2945.10(B); R.C. 2315.01(A)(2). Opening
statements often serve to state the party’s theory of the case. State v. Inman, 4th Dist.

Ross No. 13CA3374, 2014-Ohio-786, ¶ 29, citing State v. Warmus, 197 Ohio App.3d

383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 24 (8th Dist.).

       {¶19} Counsel should be afforded latitude by the trial court in making an opening

statement. Columbus v. Hamilton, 78 Ohio App.3d 653, 657, 605 N.E.2d 1004 (10th

Dist.1992), citing Maggio v. Cleveland, 151 Ohio St. 136, 84 N.E.2d 912 (1949),

paragraph two of the syllabus. However, opening statements should not include matters

that attempt to influence or sway the jury by making statements that counsel knows will

not be supported by competent or admissible evidence. See Maggio at 140-141.

       {¶20} R.C. 2315.01(A)(2) provides that the “defendant shall state the defendant’s

defense, and briefly may state the defendant’s evidence in support of it.” In this case, the

trial court’s interruptions did not violate R.C. 2315.01(A)(2) because they did not

interfere with Copeland’s right to briefly state her defense and evidence in support of it.

Counsel’s statements were not focused on a defense or the evidence. In fact, counsel’s

opening statement went beyond an outline of the case to be presented and what the

evidence would show.       If the purpose of defense counsel’s opening statement was

“simply [an attempt] to ask the jurors to consider the evidence in the case without any

bias or sympathy in favor of the officers,” this attempt was previously accomplished

during voir dire when defense counsel extensively questioned the jurors about their ability

to be impartial when police officers are witnesses. (See, e.g., tr. 166.)
       {¶21} Furthermore, Copeland has failed to demonstrate on appeal how these

interruptions to defense counsel’s opening statement prejudiced the entire trial.

Accordingly, Copeland’s second assignment of error is overruled.

                                      Jury Instructions

       {¶22} In her third assignment of error, Copeland contends that the trial court erred

by failing to instruct the jury properly.

       {¶23} Copeland first challenges the trial court’s instruction that an officer’s

reasonable belief that she was speeding would justify a lawful arrest. After the state

objected to the initial resisting-arrest instruction given to the jury because it did not

include the offenses upon which Copeland could be arrested, the court, over a general

objection, gave the jury the following instruction:

       I had told you that you must also decide whether the arrest was lawful.
       And I said an arrest was lawful if the offense for which the arrest was being
       made was one for which the defendant could be arrested, and the arresting
       officer had an authority to make the arrest at the time and place where the
       alleged resistance or interference took place and a reasonable police officer,
       under the facts and circumstances in evidence, would have believed that the
       elements of OVI, hit/skip[,] and speeding were being or had been
       committed by the defendant. The State need not prove that the defendant
       was in fact guilty of the offense, but only that the police officer had a
       reasonable belief of the defendant’s guilt.

       {¶24} Subject to certain exceptions, the offense of speeding is a minor

misdemeanor for which a person cannot be arrested. R.C. 4511.21 and 2935.02. The

state concedes on appeal that Copeland’s speeding offense was a minor misdemeanor.

Accordingly, the trial court erred in including the offense of speeding as an arrestable

offense in the resisting-arrest jury instruction.
       {¶25} However, the jury heard testimony at trial that Copeland was arrested for

OVI and hit/skip, which, in this case, are both first-degree misdemeanors and thus,

arrestable offenses. R.C. 4511.19 and 4549.02. Therefore, because those offenses were

included in the instruction for which Copeland could have been arrested, we find that the

trial court’s inclusion of speeding was harmless error. See Crim.R. 52(A) (errors that do

not affect a substantial right shall be disregarded).

       {¶26} Copeland also contends that the trial court erred when it instructed the jury,

over objection, that voluntary intoxication was not a defense to the crimes. Copeland

asserts that the trial court abused its discretion in giving this instruction because she was

not asserting this defense at trial. Accordingly, it appears that Copeland is not arguing

that the trial court gave an erroneous instruction; rather, she is asserting that the trial court

gave an unnecessary instruction.

       {¶27} A “trial court has discretion to determine whether the evidence is sufficient

to require a jury instruction on intoxication.” State v. Nields, 93 Ohio St.3d 6, 22, 752

N.E.2d 859 (2001), citing State v. Wolons, 44 Ohio St.3d 64, 541 N.E.2d 443 (1989).

Therefore, while Copeland may not have been asserting the defense, the trial court may

have considered it necessary based on the evidence presented at trial.

       {¶28} Furthermore, when reviewing a trial court’s jury instructions, we may not

judge a single instruction in isolation, but rather in the context of the overall charge.

State v. Madrigal, 87 Ohio St.3d 378, 396, 721 N.E.2d 52 (2000). Thus, we must

consider the jury instructions “as a whole” and then determine whether the jury charge
probably misled the jury in a manner materially affecting the complaining party’s

substantial rights. See Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d 202, 208, 560

N.E.2d 165 (1990).

       {¶29} In this case, after viewing the jury instructions as a whole, we find that the

trial court’s decision to instruct the jury on voluntary intoxication was harmless error.

See Crim.R. 52(A).       We cannot say, nor has Copeland demonstrated, how she was

prejudiced or how the jury would have been confused or misled by the inclusion of this

instruction.   See, e.g., State v. Carradine, 8th Dist. Cuyahoga No. 101940,

2015-Ohio-3670 (trial court’s inclusion of an erroneous extra instruction was not plain

error when viewing the jury instructions as a whole). Accordingly, Copeland’s third

assignment of error is overruled.

          Allied Offenses — Assault of a Police Officer and Resisting Arrest

       {¶30} In her fourth assignment of error, Copeland contends that the offenses of

resisting arrest and assault on a police officer were allied offenses and should have

merged for sentencing.

       {¶31} Because Copeland did not raise the issue of allied offenses in the trial court,

we review for plain error:

       An accused’s failure to raise the issue of allied offense of similar import in

       the trial court forfeits all but plain error, and a forfeited error is not

       reversible error unless it affected the outcome of the proceeding and

       reversal is necessary to correct a manifest miscarriage of justice.
      Accordingly, an accused has the burden to demonstrate a reasonable

      probability that the convictions are for allied offenses of similar import

      committed with the same conduct and without a separate animus; and,

      absent that showing, the accused cannot demonstrate that the trial court’s

      failure to inquire whether the convictions merge for purposes of sentencing

      was plain error.

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.

      {¶32} R.C. 2941.25 provides that:

      (A) Where the same conduct by defendant can be construed to constitute
      two or more allied offenses of similar import, the indictment or information
      may contain counts for all such offenses, but the defendant may be
      convicted of only one.

      (B) Where the defendant’s conduct constitutes two or more offenses of
      dissimilar import, or where his conduct results in two or more offenses of
      the same or similar kind committed separately or with a separate animus as
      to each, the indictment or information may contain counts for all such
      offenses, and the defendant may be convicted of all of them.

      {¶33} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Supreme Court of Ohio clarified how courts are to determine whether offenses are allied.

The Supreme Court noted that the allied-offenses analysis is dependent upon the facts of a

case because R.C. 2941.25 focuses on the defendant’s conduct.              Id. at ¶ 26.

Nevertheless, conduct is but one factor to consider when determining whether offenses

are allied. Id. at ¶ 21. The court explained:

      As a practical matter, when determining whether offenses are allied

      offenses of similar import within the meaning of R.C. 2941.25, courts must
       ask three questions when defendant’s conduct supports multiple offenses:

       (1) Were the offenses dissimilar in import or significance? (2) Were they

       committed separately? and (3) Were they committed with separate animus

       or motivation? An affirmative answer to any of the above will permit

       separate convictions. The conduct, the animus, and the import must all be

       considered.

Id. at ¶ 31.

       {¶34} With respect to import, the Supreme Court explained that offenses are of

dissimilar import “if they are not alike in their significance and their resulting harm.” Id.

at ¶ 21. Thus, “two or more offenses of dissimilar import exist within the meaning of

R.C. 2941.25(B) when the defendant’s conduct constitutes offenses involving separate

victims or if the harm that results from each offense is separate and identifiable.” Id. at ¶

26.

       {¶35} In support of Copeland’s argument that the offenses merge, she directs this

court to State v. Johnson, 7th Dist. Mahoning No. 12 MA 137, 2014-Ohio-4253.

However, the Johnson facts are clearly distinguishable because in Johnson, the arresting

officer and the assaulted officer were the same individual and the offenses were the result

of conduct committed by a single act with a single state of mind. Id. at ¶ 116, 120.

       {¶36} In this case, Copeland committed the offense of resisting arrest when she

failed to comply with Officer Golem’s repeated orders and requests to place her hands

behind her back so that he could place her in handcuffs and then again when she
repeatedly failed to cooperate and seat herself in the back of the police cruiser. Copeland

then committed the separate offense of assault on a police officer when she kicked

Sergeant Johnson in the face. In addition to the break in time between the two offenses,

the arresting officer and assaulted officer were different individuals; thus different

victims. Accordingly, the offenses of resisting arrest and assault are not allied offenses

subject to merger for sentencing.

       {¶37} Accordingly, Copeland’s fourth assignment of error is overruled.

                              Effective Assistance of Counsel

       {¶38} In her first assignment of error, Copeland contends that “the trial court erred

by failing to reverse her conviction for failure to receive effective assistance of counsel.”

We first note that Copeland did not request a new trial with the trial court. Therefore, the

trial court was not in a position to reverse Copeland’s convictions. However, a review of

the arguments made under this assignment of error are merely an appellate challenge to

the effective assistance of trial counsel.

       {¶39} To establish ineffective assistance of counsel, a defendant must demonstrate

(1) that counsel’s performance fell below an objective standard of reasonable

representation and (2) that he was prejudiced by that performance.             Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674, (1984). Prejudice

is established when the defendant demonstrates “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

       {¶40} The failure to prove either prong of the Strickland two-part test makes it

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court

need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

* * * that course should be followed.” Strickland at id.

       {¶41} In this case, Copeland contends her counsel was ineffective for failing to

object to the testimony and exhibits introduced at trial depicting her conduct at the jail

following her arrest. She contends that this evidence was irrelevant, prejudicial, and did

not give rise to any additional charges for which she was on trial. Accordingly, she

contends counsel allowed improper Evid.R. 404(B) evidence to be submitted to the jury

because the case came down to whether the jury believed the officers that she

intentionally kicked Johnson or whether the jury believed that the injury to Johnson was

accidental.

       {¶42} We need not analyze any alleged counsel deficiencies because Copeland

cannot demonstrate that she was prejudiced by any of counsel’s errors such that the

outcome of proceeding would have been different.
       {¶43} Excluding the jail video and the challenged testimony, the jury had

sufficient evidence before it to support Copeland’s convictions. The jury was able to

view Copeland’s conduct during the traffic stop, including her repeated refusals to

cooperate with the police. The jury was able to hear the officers’ repeated requests for

Copeland to exit her vehicle, perform the field sobriety tests, place her hands behind her

back, and seat herself in the police cruiser. The jury was able to further observe and

listen to the struggle that ensued once the officers were forced to assist Copeland in the

police cruiser.   Finally, the jury heard Copeland screaming, yelling obscenities and

threats, and saw her kicking once she was inside the police cruiser.        Furthermore,

Copeland admitted that she was acting loud and obnoxious while she was screaming and

yelling. She also admitted to kicking at the windows once inside the cruiser.

       {¶44} The jury is in the best position to view credibility. See, e.g., State v.

Gibson, 8th Dist. Cuyahoga No. 98725, 2013-Ohio-4372, ¶ 57.               Therefore, the

competing interpretations of Copeland’s actions — whether Copeland intentionally or

accidentally kicked Sergeant Johnson during the melee — were before the jury and they

could make their own determination based on their own observations of Copeland’s

conduct.

       {¶45} Accordingly, it cannot be said that a reasonable probability exists that the

result of the proceedings would have been different but for any alleged errors by defense

counsel. The second part of the Strickland test has not been satisfied. Copeland’s first

assignment of error is overruled.
      {¶46} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., A.J., and
ANITA LASTER MAYS, J., CONCUR
