[Cite as State v. Pulley, 2016-Ohio-249.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 14-15-21

        v.

ALEXANDRIA PULLEY,                                         OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Marysville Municipal Court
                           Trial Court No. 2015-CRB-00088

                                       Judgment Affirmed

                            Date of Decision: January 25, 2016




APPEARANCES:

        Adam G. Burke for Appellant

        Rick Rodger for Appellee
Case No. 14-15-21


ROGERS, J.

        {¶1} Defendant-Appellant, Alexandria Pulley, appeals the judgment of the

Marysville Municipal Court convicting her of speeding, possession of marihuana,

and possession of drug paraphernalia. On appeal, Pulley argues that the trial court

was biased in that it had ultimately decided the merits of the case before Pulley

was finished with her case-in-chief. For the reasons that follow, we affirm the

judgment of the trial court.

        {¶2} On February 7, 2015, Pulley was issued citations for possession of

drug paraphernalia in violation of R.C. 2925.141, a minor misdemeanor;

possession of marihuana in violation of R.C. 2925.11, a minor misdemeanor; and

speeding.1 Pulley entered pleas of not guilty to all three charges on February 23,

2015.

        {¶3} The matter proceeded to a bench trial on May 18, 2015 where the

following testimony was heard.

        {¶4} Trooper Jerrod White of the Ohio State Highway Patrol was the first

witness to testify. Trooper White testified that he was working on February 7,

2015. On that morning, Trooper White stated that he stopped Pulley’s vehicle for




1
  The criminal and traffic cases were assigned different case numbers. The drug paraphernalia and
marihuana possession charges were assigned case nos. 15CRB88A and 15CRB88B respectively. The
speeding charge was assigned case no. 15TRD795. On appeal, Pulley only challenges her convictions in
case numbers 15CRB88A and 15CRB88B. Thus, we will not consider any alleged errors regarding case
no. 15TRD795.

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Case No. 14-15-21


a speeding violation. Specifically, he testified that she was traveling at a speed of

80 miles per hour in a 70 miles per hour zone.

       {¶5} Trooper White explained that Pulley was the sole occupant of the

vehicle that morning.     Moreover, he testified that Pulley seemed extremely

nervous for a seemingly minor traffic violation. He stated that her hands were

shaky and that “she just seemed overly nervous in her demeanor like she was

almost ready to cry.” Trial Tr., p. 17.

       {¶6} Trooper White testified that nervousness can be an indication that

other criminal activity is afoot. Although he explained that it is normal for people

to be nervous when interacting with police, he stated that usually this nervousness

diminishes during the stop; Pulley, however, only seemed to grow more nervous

as the stop continued.

       {¶7} Trooper White testified that he observed a bottle of Febreze hanging

on the back of the front seat in a pouch. He also noticed some perfume in the front

passenger compartment. Based on his observations and his training, Trooper

White stated that he called a canine unit to perform a drug sniff on Pulley’s

vehicle.

       {¶8} Trooper White explained that Deputy Bob Roberts and his dog arrived

on the scene, walked around the car, and Deputy Roberts indicated that the dog

alerted on the car. Trooper White stated that Pulley was then removed from the


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Case No. 14-15-21


car while they performed a search of the vehicle. As a result of the search,

Trooper White testified that he found two pipes, typically used for smoking

marihuana, with what he believed to be marihuana residue inside the pipes. He

also found what he believed to be a marihuana cigarette and several pieces of

marihuana debris all throughout the console area of the vehicle. Trooper White

explained that the cigarette was found right next to Pulley’s purse, which was

within reach of the driver’s seat. Trooper White identified photographs of all the

items removed from the car (the pipes, cigarette, and debris), which were admitted

into evidence.

       {¶9} Trooper White testified that he submitted the items for testing. He

identified a copy of the lab report, which was admitted into evidence. The results

came back positive for marihuana on all the items.

       {¶10} Trooper White stated that Pulley had indicated that she and her

friends have smoked marihuana in the past. She also told him that although her

grandmother owns the car, Pulley was the primary driver. He added that she

possessed the keys to the car. Trooper White concluded by stating that he issued

Pulley citations for the violations and let her go on her way.

       {¶11} On cross-examination, Trooper White testified that it was uncommon

to find Febreze hanging on the back pouch of the front seat, but admitted that it

was common to find perfume in a woman’s vehicle. He also admitted that neither


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Case No. 14-15-21


the odor of fresh marihuana nor burnt marihuana was present in the vehicle or on

Pulley’s person.

       {¶12} Deputy Bob Roberts of the Union County Sheriff’s office was the

last witness to testify on behalf of the State. Deputy Roberts testified that he

served as a drug canine handler. He stated that he responded to a call made by

Trooper White to perform a drug sniff around a person’s vehicle.

       {¶13} Upon arriving at the scene, Deputy Roberts testified that he and his

dog approached Pulley, he explained why they were there and what they were

going to do, and asked Pulley if she wanted to admit to anything that was in the

car. After this brief conversation, Deputy Roberts stated that his dog positively

alerted on the passenger door.

       {¶14} On cross-examination, Deputy Roberts admitted that none of the

incriminating items could be seen from a plain view search.

       {¶15} At the conclusion of Deputy Roberts’s testimony, the State rested.

       {¶16} Brian Pulley (“Brian”), Pulley’s father, was the first witness to testify

on Pulley’s behalf. Brian testified that Pulley’s car was a complete mess on

February 7, 2015. He added that he knew Pulley would give different people rides

to work or the grocery store.




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Case No. 14-15-21


        {¶17} When Pulley’s counsel attempted to ask Brian who Pulley gave rides

to, the following exchange occurred between the court, the prosecutor, and defense

counsel:2

        D:     All right. Who was she giving rides to work to?

        P:     Objection. One, relevance. But two, it has nothing to do with
               what we’re doing here.

        C:     Sustained. Sustained.

        D:     Your Honor, I think this is relevant to who’s in possession of
               the - - the drugs and the paraphernalia.

        P:     We’ve already had that testimony that she was in possession of
               the vehicle that day.

        C:     Correct. So I’m going to sustain the objection.

        D:     Your Honor, is there - - is there any point in having the rest of
               the trial? It sounds like you’ve already made a ruling. If the - -

        C:     I think - -

        D:     If basically what we’re saying is if the marijuana - - if - - and
               the paraphernalia is in her vehicle, then she’s guilty. And I
               don’t believe the case law supports that, your Honor. But if
               that’s your ruling, then we might as well call an end to the
               hearing.

        C:     It’s up to you.

        D:     Okay.

        C:     Do what you want.


2
 For ease of discussion, “C” indicates when the trial court was speaking, “P” indicates when the prosecutor
was speaking, and “D” indicates when Pulley’s counsel was speaking.

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Case No. 14-15-21


Id. at p. 54. After speaking with her counsel, Pulley decided to continue with the

trial.

         {¶18} Brian testified that approximately a week prior to Pulley’s traffic

stop, Austin Hanks was a passenger in Pulley’s car.

         {¶19} On cross-examination, Brian testified that nobody else drives

Pulley’s vehicle other than her.

         {¶20} Austin Hanks was the next witness to testify, but invoked his right

against self-incrimination.

         {¶21} Pulley was the final witness to testify. Pulley admitted that she was

speeding on February 7, 2015 when she was pulled over by Trooper White. Pulley

testified that she was nervous because she had just recently received a speeding

ticket the previous month. Pulley stated that she was unaware that any marihuana

was present in the car.

         {¶22} Pulley testified that Hanks was a passenger in her car a couple of

times during the week leading up to this traffic stop. She added that Hanks

smokes marihuana. She explained that Hanks had indicated to her that he would

admit to the possession of the marihuana and paraphernalia.

         {¶23} On cross-examination, Pulley testified that she had no knowledge of

anyone smoking marihuana in her car other than herself. At the conclusion of

Pulley’s testimony, the defense rested.


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Case No. 14-15-21


       {¶24} The court found Pulley guilty on all three counts.            The case

proceeded immediately to sentencing. In case no. 15TRD95, the court imposed a

fine of $58 and court costs. In case no. 15CRB88A, the court imposed a fine of

$150 and court costs. Additionally, the court ordered that Pulley’s driver’s license

be suspended for 180 days. Finally, in case no. 15CRB88B, the court imposed a

fine of $150 and court costs. The court ordered that her license be suspended for

the same 180 day period as case no. 15CRB88A.

       {¶25} Upon Pulley’s oral motion, the trial court stayed the execution of the

sentence pending an appeal.

       {¶26} Pulley filed this timely appeal, presenting the following assignment

of error for our review.

                               Assignment of Error

       THE TRIAL COURT ERRED                       IN    DENYING         THE
       DEFENDANT A FAIR TRIAL.

       {¶27} In her sole assignment of error, Pulley argues that she was denied a

fair trial. Specifically, she argues that the trial court was biased. Pulley bases her

argument on the theory that the trial court impermissibly sustained the State’s

objection to Brian’s testimony regarding passengers in Pulley’s car. According to

Pulley, by doing so, the trial court had “already decided the merits of the case to

the extent that [Pulley] by necessity proceeded with her futile trial solely to

preserve the record for the instant appeal.” Appellant’s Brief, p. 11. We disagree.

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Case No. 14-15-21


       {¶28} “ ‘A judge is presumed not to be biased or prejudiced, and a party

alleging bias or prejudice must present evidence to overcome the presumption.’ ”

Cline v. Mtge. Electronic Registration Sys., Inc., 10th Dist. Franklin No. 13AP-

240, 2013-Ohio-5706, ¶ 33, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325,

2004-Ohio-4423, ¶ 20 (10th Dist.), citing In re Disqualification of Kilpatrick, 47

Ohio St.3d 605, 606 (1989) and Eller v. Wendy’s Internatl., Inc., 142 Ohio App.3d

321, 340 (10th Dist.2000). “ ‘The existence of prejudice or bias against a party is

a matter that is particularly within the knowledge and reflection of each individual

judge and is difficult to question unless the judge specifically verbalizes prejudice

toward a party.’ ” Cline at ¶ 33, quoting Wardeh at ¶ 20. “A judge’s rulings of

law are legal issues, subject to appeal, and are not by themselves evidence of bias

or prejudice.” Id., citing Okocha v. Fehrenbacher, 101 Ohio App.3d 309, 322 (8th

Dist.1995).

       {¶29} Trial courts have broad discretion in determining whether to admit or

exclude evidence. State v. Heft, 3d Dist. Logan No. 8-09-08, 2009-Ohio-5908, ¶

62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001), citing State v. Maurer, 15

Ohio St.3d 239 (1984). Accordingly, a trial court’s ruling on the admissibility of

evidence will not be disturbed on appeal absent an abuse of discretion. Id. A trial

court will be found to have abused its discretion when its decision is contrary to

law, unreasonable, not supported by the evidence, or grossly unsound. State v.


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Case No. 14-15-21


Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18 (2d Dist.). When applying

the abuse of discretion standard, a reviewing court may not simply substitute its

judgment for that of the trial court. State v. Slappey, 3d Dist. Marion No. 9-12-58,

2013-Ohio-1939, ¶ 12.

       {¶30} In the case before us, Pulley argues that the trial court’s bias was

evidenced by the court’s decision to exclude relevant evidence regarding

passengers in Pulley’s car and by remarks the court made after it granted the

State’s objection to that testimony.

                           Testimony Regarding Passengers

       {¶31} Pulley’s first argument is that the trial court showed a bias by

excluding the relevant testimony of Brian who was about to testify as to whom

Pulley would give rides. The State objected on the grounds of relevancy, which

was immediately granted by the trial court. Defense counsel argued that it was

relevant because it went to who possessed the drugs and paraphernalia. The State

responded that the officers had already testified that Pulley was in sole possession

of the vehicle on the day in question. The trial court agreed with the State and

sustained the objection.

       {¶32} It is clear from the record that Pulley’s defense was that the

marihuana and paraphernalia belonged to Hanks. Although the identity of recent

passengers could have been relevant in establishing the owner of the drugs and


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Case No. 14-15-21


paraphernalia, defense counsel initially failed to relate his line of questioning to

the relevant date of the traffic stop.

       {¶33} Defense counsel tried, several times, to elicit testimony from Brian to

establish that Hanks had been a passenger in Pulley’s vehicle in the days

preceding the traffic stop. At the time the State’s objection was sustained, defense

counsel had failed to establish a time frame for when any passengers, including

possibly Hanks, were in Pulley’s car. After the State’s objection was sustained,

the trial court sustained several more State objections based on the same grounds.

See Trial Tr., p. 55-57. When defense counsel tied his questions to the relevant

date, Brian was able to testify that Hanks was a passenger in Pulley’s car some

time a week before the traffic stop.

       {¶34} Because defense counsel failed to identify a time period for when

passengers were in Pulley’s car, the trial court did not abuse its discretion by

excluding testimony at that time. Further, even if the court did err, Brian was

ultimately able to testify that Hanks had been a passenger in Pulley’s car. Thus,

any error that may have occurred would have been harmless.

                               Trial Court’s Statements

       {¶35} Specifically, Pulley claims that the following exchange proved that

the trial court had already decided the merits of the case:

       D:    Your Honor, is there - - is there any point in having the rest of
             the trial? It sounds like you’ve already made a ruling. If the - -

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       C:    I think - -

       D:    If basically what we’re saying is if the marijuana - - if - - and
             the paraphernalia is in her vehicle, then she’s guilty. And I
             don’t believe the case law supports that, your Honor. But if
             that’s your ruling, then we might as well call an end to the
             hearing.

       C:    It’s up to you.

       D:    Okay.

       C:    Do what you want.

Trial Tr., p. 54.

       {¶36} The trial court’s statements “It’s up to you” and “Do what you want”

did not evidence a predisposition of the merits of the case. The trial court never

indicated or stated that it had determined that Pulley was guilty. Rather, the trial

court was responding to the comments made by defense counsel as to whether

Pulley should continue with her case-in-chief. The court informed counsel that the

decision as to whether to continue with its case-in-chief was up to Pulley.

       {¶37} Accordingly, we overrule Pulley’s sole assignment of error.

       {¶38} Having found no error prejudicial to Pulley, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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