         [Cite as State v. Benton, 2014-Ohio-2163.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NOS. C-130556
                                                                       C-130557
        Plaintiff-Appellee,                           :                C-130558
                                                          TRIAL NO. 12TRC-53452
  vs.                                                 :
                                                              O P I N I O N.
CARRISA BENTON,                                       :

    Defendant-Appellant.                              :




Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 21, 2014


Charles A. Rubenstein, City Prosecutor, and David Sturkey, Assistant City
Prosecutor, for Plaintiff-Appellee,


David Hoffmann, Assistant Hamilton County Public Defender, for Defendant-
Appellant.




Please note: this case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

        {¶1}     Carrisa Benton caused a car accident by making a U-turn in the middle

of the road, directly in front of oncoming traffic. A jury concluded that she had been

inebriated at the time, and convicted her of operating a vehicle under the influence of

alcohol (“OVI”). She was also convicted of an improper change-of-course violation and

failing to reinstate her driver’s license.

        {¶2}     Ms. Benton now appeals those convictions. In six assignments of error,

she alleges that the trial court violated her speedy-trial rights and erred in excluding

defense evidence, that her convictions were not supported by sufficient evidence and

were against the weight of the evidence, and that she was denied the effective assistance

of counsel. We conclude that none of her arguments have merit, so we affirm the

judgment below.

                                        The Accident

        {¶3}     On the evening of November 8, 2012, Ms. Benton left the home of her

friend Wallace White after consuming, by her estimation, “a little bit” of brandy.

Over an hour later, she was driving southbound on Belmont Avenue just blocks from

Mr. White’s apartment, when she abruptly decided to turn around. Ms. Benton

crossed the double-yellow line in front of a car driven by Michael Starks, who was

heading home with his girlfriend and daughter. Mr. Starks slammed on his brakes,

but could not avoid a collision. It is unclear where Ms. Benton had been for the hour

between leaving Mr. White’s apartment and getting into her car.

        {¶4}     Police and emergency responders arrived within minutes. Officer

Thomas Stanton determined that Ms. Benton was at fault in the accident because her

car was positioned left-of-center, and skid marks on the ground indicated that Mr.




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Starks had attempted to brake, but Ms. Benton had not. Officer Stanton further

explained that there was no room to make a U-turn at that point on the road, and if

she had been attempting to turn into a nearby driveway, she missed it considerably.

Officer Stanton observed Ms. Benton arguing with life squad personnel as they

extricated her from her vehicle. When he spoke with her, he noted that her breath

smelled strongly of alcohol and she had bloodshot eyes. He ran her name through

the computer system in his cruiser, and discovered that her license had not been

reinstated after a previous license suspension.       He chose not to perform field-

sobriety tests because of the possibility that Ms. Benton had been injured during the

crash. Ms. Benton was taken to the hospital.

       {¶5}     Officer Stanton interviewed Ms. Benton at the hospital. She admitted

to drinking brandy and said that she had not eaten all day. She was confused about

the time of day, and identified her alcohol consumption as having occurred at a time

that was later than the accident. Officer Benton noted that she was still emitting a

strong odor of alcohol at the hospital. She refused to provide a blood sample for

testing when asked. Officer Stanton concluded that she was appreciably impaired

and issued a traffic citation that night.

       {¶6}     The facts above were elicited by the state through the testimony of

Officer Stanton and Mr. Starks at trial. Mr. White testified for the defense. He stated

that Ms. Benton had been doing computer work at his apartment, and had consumed

only half a beer and, maybe, a shot of brandy.

       {¶7}     Although the charges were tried together, only the OVI offense was

submitted to the jury.       The jury found Ms. Benton guilty of violating R.C.

4511.19(A)(1)(a). Additionally, the trial court convicted her of making an improper turn,




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under Cincinnati Municipal Code 506-80, and failing to reinstate her driver’s license

under R.C. 4510.21. She now appeals, raising six assignments of error.

                             No Speedy-Trial Violation

       {¶8}    Ms. Benton first contends that the trial court erred by failing to

dismiss the charges against her on speedy-trial grounds. Ohio’s speedy-trial statute,

R.C. 2945.71, required in this case that Ms. Benton be brought to trial within 90 days

of receiving her citation. See R.C. 2945.71(B)(2). That time may only be extended

for the reasons set forth in R.C. 2945.72. Once the statutory period for bringing an

accused to trial has expired, the state bears the burden of showing that the accused

waived his right to a speedy trial or that time was properly extended under R.C.

2945.72. See State v. Meyer, 1st Dist. Hamilton No. C-090802, 2011-Ohio-1357, ¶ 9,

citing State v. Butcher, 27 Ohio St.3d 28, 30-31, 500 N.E.2d 1368 (1986). Such

extensions are strictly construed against the state. State v. Ramey, 132 Ohio St.3d

309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 24, quoting State v. Singer, 50 Ohio St.2d

103, 109, 362 N.E.2d 1216 (1997).

       {¶9}    Ms. Benton’s trial took place on August 19, 2013, well outside the 90-

day period. The parties agree that much of that time had been tolled under the

statute. Two time periods are at issue on appeal. One began on April 15 with the filing

of a motion to suppress and extended to the suppression hearing on April 30. The other

concerns a continuance granted at the April 30 hearing until June 18.

       {¶10}   We first address the issue raised by Ms. Benton in her assignment of

error: whether the period of time from the April 30 continuance to the next hearing date

on June 18 should have been charged to the state. Under R.C. 2945.72(H), speedy-trial

time may be tolled for “[t]he period of any continuance granted on the accused’s own

motion, and the period of any reasonable continuance granted other than upon the



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accused’s own motion[.]” Thus, time is tolled for a continuance granted at the state’s

request only if that continuance is “reasonable.”          The reasonableness of the

continuance must be “affirmatively demonstrated by the record.” Ramey at ¶ 33.

       {¶11}   But counsel for Ms. Benton conceded at oral argument that the

transcript of the April 30 hearing indicated that the parties had agreed to the

continuance, and consequently, time had tolled. We agree. A continuance granted

upon the joint motion of the parties does not require a showing of “reasonableness”

under R.C. 2945.72(H) because the continuance is granted, in part, on the motion of

the accused. See, e.g., State v. Watson, 10th Dist. Franklin No. 13AP-148, 2013-

Ohio-5603, ¶ 19. We, therefore, conclude that speedy-trial time did not run during

that period.

       {¶12}   Next, we address the period of time from April 15, when the motion to

suppress was filed, to April 30, the date of the previously-scheduled suppression

hearing. Ms. Benton did not contest this time period in her brief on appeal, but counsel

for Ms. Benton raised the issue at oral argument. We generally disregard claims raised

during oral argument that have not been addressed in the parties’ briefs. App.R. 12;

App.R. 16. Even so, we find counsel’s argument to be without merit.

       {¶13}   Trial had been set for April 3, but was continued at the state’s request.

At that time, defense counsel indicated his intent to file a motion to suppress new

evidence the state had disclosed that day. In anticipation of the motion, the parties

agreed to set the matter out four to six weeks for a suppression hearing, and a hearing

was scheduled that day for April 30. The motion itself was not filed until April 15.

       {¶14}   Although the time period from April 3 to April 15 was charged to the

state based on its request for a continuance, once the motion to suppress was filed on

April 15, time was tolled under R.C. 2945.72(E). Counsel contends that because the



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April 30 hearing date was chosen on April 3, the filing of the motion on April 15 did

not cause an additional delay, and therefore the period of time from April 15 to April

30 should not have been tolled. In support of this argument, counsel relies on State

v. Frost, 4th Dist. Scioto No. 91-CA-1995, 1992 Ohio App. LEXIS 6228 (Dec. 11,

1992). In that case, the Fourth Appellate District held that time did not toll upon the

filing of a defense motion because the trial date had already been scheduled, and

neither the filing nor the hearing on the motion delayed the previously-set trial date.

We find this case to be distinguishable. Here, the hearing was set for April 30 in

order to allow the defense time to file the motion to suppress and allow the parties

time to prepare for the suppression hearing. The parties expressly acknowledged

that the suppression hearing would have to be scheduled further out, approximately

four to six weeks later, to allow sufficient time to prepare. Therefore, we conclude that

the filing of the motion tolled time. We overrule the first assignment of error.

                Evidentiary Rulings Amount to Harmless Error

       {¶15}   Ms. Benton next contests the trial court’s exclusion of two pieces of

defense evidence. The first is a photograph of her car after the accident. Officer

Stanton testified that the photograph truly and accurately depicted the damage to

her car. The trial court ruled the evidence inadmissible on the basis that, because the

officer could not testify to the photograph’s origin, it had not been properly

authenticated. A photograph may be authenticated by testimony that it fairly and

accurately depicts its subject. Evid.R. 901(B)(1). Thus, the trial court erred by failing

to admit the photograph into evidence. Nevertheless, Ms. Benton has not shown any

prejudice as a result. She contends that the photograph reveals that the force of the

impact was attributable to Mr. Starks’s speed. But Mr. Starks testified that she

turned so closely in front of him that he did not have enough time to apply his



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                     OHIO FIRST DISTRICT COURT OF APPEALS



brakes. He described it as being “like a deer running out in front of you on the road.”

The evidence indicates that—regardless of how fast Mr. Starks had been driving—she

could not have executed the turn with reasonable safety.

       {¶16}   In addition, Ms. Benton claims the trial court erred by excluding Mr.

White’s testimony about the severity of her injuries. The trial court concluded that

her injuries were not relevant to the cause of the crash. Yet the defense elicited the

testimony in an effort to show that Ms. Benton’s post-accident confusion and

agitation had been the result of her injuries, and not intoxication. Therefore, the

evidence was relevant. But we still find no prejudice. Officer Stanton stated that Ms.

Benton reeked of alcohol, had bloodshot eyes, and had been combative towards

emergency personnel. Because we find both errors to be harmless, we overrule Ms.

Benton’s second assignment of error. See Crim.R. 52(A).

                  Convictions are Supported by the Evidence

       {¶17}   In her third and fourth assignments of error, Ms. Benton challenges

the trial court’s denial of her Crim.R. 29 motion for acquittal and the sufficiency of

the evidence presented below.      “A claim that the trial court erred in denying a

motion for acquittal triggers a standard of review identical to that which applies to a

sufficiency claim,” so we consider these arguments together. See State v. Williams,

74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996).

       {¶18}   Ms. Benton’s OVI conviction was based on her conduct and

appreciable impairment, not upon the results of an alcohol test. See, e.g., State v.

Grizovic, 177 Ohio App.3d 161, 2008-Ohio-3162, 894 N.E.2d 100, ¶ 9 (1st Dist.). Ms.

Benton asserts that the evidence was insufficient to show that she was “appreciably

impaired” by alcohol. Mr. Starks testified that the vehicle driven by Ms. Benton

abruptly turned into the path of his vehicle. Officer Stanton explained that there was



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no room to execute a U-turn, nor was Ms. Benton close to any driveways, at the place

where she attempted to turn. The record further indicates that Ms. Benton smelled

strongly of alcohol, had bloodshot eyes, was argumentative at the scene, and

admitted to consuming alcohol. We believe the record contains sufficient evidence

for a jury to conclude that the state had proven the elements of the offense beyond a

reasonable doubt. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶19}    Ms. Benton further contests the sufficiency of the evidence on her

failure-to-reinstate conviction. Officer Stanton testified—without objection—that a

search of her license returned information that it had previously been suspended and

had not been reinstated. Ms. Benton contends that the hearsay testimony, absent

some additional documentary evidence that her license was not valid, was

insufficient by itself to sustain the conviction.

       {¶20}    Ms. Benton has not argued that the admission of the hearsay evidence

was plain error. And the fact that the officer’s testimony was hearsay does not affect

our sufficiency review. The Ohio Supreme Court has rejected the notion that we

must only consider admissible evidence in evaluating whether a conviction was

supported by sufficient evidence. See State v. Brewer, 121 Ohio St.3d 202, 2009-

Ohio-593, 903 N.E.2d 284, ¶ 1, 19; State v. Renner, 2d Dist. Montgomery No. 25514,

2013-Ohio-5463; State v. Brooks, 8th Dist. Cuyahoga No. 91730, 2010-Ohio-2446.

Instead, the reviewing court must look to all the evidence admitted at trial, whether

or not it was properly admitted. Renner at ¶ 8; Brooks at ¶ 1. We conclude that,

based on the officer’s testimony, the court could reasonably have found all the

elements of the offense to have been proven beyond a reasonable doubt. See Jenks,

supra. The third and fourth assignments of error are overruled.



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       {¶21}   Ms. Benton asserts in her fifth assignment of error that her OVI and

improper-change-of-course convictions are against the manifest weight of the

evidence. As to the OVI conviction, Ms. Benton argues that there were other possible

explanations for her behavior that night. But it was for the jury to weigh those facts.

Our review of the entire record fails to persuade us that the jury clearly lost its way

and created such a manifest miscarriage of justice that we must reverse Ms. Benton’s

conviction and order a new trial. See State v. Thompkins, 78 Ohio St.3d 380, 386-

387, 678 N.E.2d 541 (1997).

       {¶22}   The gist of her argument in regard to the improper-turn violation is

that Mr. Starks was not a credible witness.        Again, we leave such credibility

determinations to the fact-finder. Moreover, Officer Stanton determined that her car

was left-of-center when the collision occurred and that there was nowhere for her to

turn around at that location. After reviewing the record, we cannot conclude that the

trial court lost its way and created such a manifest miscarriage of justice that we

must reverse its decision. Id. Ms. Benton’s fifth assignment of error is overruled.

                           Counsel was not Ineffective

       {¶23}   Finally, Ms. Benton contends that her trial counsel was ineffective for

failing to object to hearsay testimony that she had been driving without a valid

license.   To succeed on this claim, Ms. Benton must show that her counsel’s

performance was deficient, and that, absent her counsel’s errors, the result of the

proceedings would have been different. See Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142,

538 N.E.2d 373 (1989).

       {¶24}   The record indicates that counsel vigorously represented Ms. Benton

by filing multiple pretrial motions and making numerous evidentiary objections



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during trial. Because the license charge was submitted to the court and not the jury,

counsel may well have chosen not to object to that testimony for purposes of trial

strategy, perhaps to avoid distracting jury members or calling their attention to it.

Regardless, we are not persuaded that counsel’s failure to object to the officer’s

testimony about the invalid license, when counsel was active in representing Ms.

Benton throughout the course of the proceedings below, rises to the level of

ineffectiveness contemplated by Strickland. Therefore, we overrule Ms. Benton’s

sixth assignment of error and affirm the judgment below.

                                                                  Judgment affirmed.


C UNNINGHAM , P.J., and H ENDON , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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