[Cite as Sunbury v. Sullivan, 2012-Ohio-3699.]


                                       COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                 :   JUDGES:
THE VILLAGE OF SUNBURY, OHIO                     :   Sheila G. Farmer, P.J.
                                                 :   John W. Wise, J.
                         Plaintiff-Appellee      :   Julie A. Edwards, J.
                                                 :
-vs-                                             :   Case No. 11CAC030025
                                                 :
                                                 :
GARY M. SULLIVAN                                 :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                              Civil Appeal from Delaware Municipal
                                                      Court Case No. 10TRC07891

JUDGMENT:                                             Affirmed

DATE OF JUDGMENT ENTRY:                               August 13, 2012

APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

PETER B. RUFFING                                      JOHN R. CORNELY
Prosecuting Attorney                                  21 Middle Street
Justice Center                                        P.O. Box 248
70 N. Union Street                                    Galena, Ohio 43021-0248
Delaware, Ohio 43015
[Cite as Sunbury v. Sullivan, 2012-Ohio-3699.]


Edwards, J.

        {¶1}    Defendant-appellant, Gary Sullivan, appeals his conviction and sentence

from the Delaware Municipal Court on one count each of use of unauthorized (fictitious)

plates, driving under an OVI suspension, operating a vehicle while under the influence

of alcohol and refusing a chemical test and driving under an FRA suspension. Plaintiff-

appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On August 17, 2010, a complaint was filed charging appellant with driving

under the influence of alcohol and/or drugs and refusing a chemical test in violation of

R.C. 4511.19(A)(2), operating a motor vehicle while under an OVI [operating a vehicle

under the influence of alcohol] suspension in violation of R.C. 4510.14(A), use of

unauthorized (fictitious) license plates in violation of R.C. 4549.08(A), driving under an

FRA suspension in violation of R.C. 4510.16, and having no valid operator’s license in

violation of R.C. 4510.12. The complaint indicated that appellant had six (6) prior OVIs.

Appellant entered a plea of not guilty to the charges.

        {¶3}    A jury trial was held on February 8, 2011. On such date, a joint stipulation

was filed stating that the parties agreed that appellant had been convicted of OVI on

May 27, 2008 in another case, that appellant’s driver’s license had been suspended for

10 years and was under suspension on August 16, 2010 and that, on August 16, 2010,

appellant was not permitted to drive.

        {¶4}    At the trial, Deputy Larry Dore testified that, on August 16, 2010, at

approximately 7:17 p.m., he was sitting in uniform in a marked cruiser at State Route 61

and Route 3 in Sunbury, Ohio when he was flagged down by a man in a white vehicle
Delaware County App. Case No. 11CAC030025                                                 3


who told him that appellant was going to be driving in the area shortly and that appellant

had a suspended license. The man provided the Deputy with a description of appellant’s

vehicle and the license plate. When Deputy Dore ran the license plate, he confirmed

that appellant had a suspended license and was provided with a picture of appellant.

       {¶5}     Approximately five minutes later, Deputy Dore saw appellant’s vehicle go

by. He determined that the man driving the vehicle matched the picture that he had

been provided. When Deputy Dore pulled in behind the vehicle he saw that the license

plate had been altered and that an E on the license plate had been changed to a F.

According to the Deputy, appellant used some type of white out or white substance to

alter the plate. After Deputy Dore activated his lights, appellant turned left and failed to

stop. The Deputy then activated his siren. Appellant continued driving and went through

two traffic lights. Once he reached his house, appellant pulled into his driveway and

then his garage. Deputy Dore testified that he followed appellant a little more than half a

mile with his lights and siren on before appellant stopped.

       {¶6}     Deputy Dore testified that when appellant got out of his vehicle, he reeked

of an alcoholic beverage coming from his person. Appellant told the officer that he had

imbibed four beers. Appellant, according to the Deputy, was argumentative and refused

to submit to field sobriety tests. Appellant’s speech was slurred and he had slowed

motor skills.

       {¶7}     Deputy Dore testified that when he told appellant why he had been

stopped appellant “kept saying...you don’t have to do this to me I am a Vietnam vet.”

Transcript at 135. Appellant was arrested and taken to the police department where he
Delaware County App. Case No. 11CAC030025                                                 4


refused to take a breathalyzer test. The following is an excerpt from Deputy Dore’s

testimony:

       {¶8}    “Q. And during your entire contact with him, including at the police station,

did he continue to exhibit the signs that you’ve described before, the reeking alcohol

and the slurred speech, those sorts of things?

       {¶9}    “A. Yes, in fact, when we were in the Sunbury’s little holding cell, it’s a

smaller area than this, two little cells and it was very strong in there, obviously because

it was in an enclosed area, the alcoholic beverage smell coming from his person.

       {¶10} “Q. And how about his appearance, his eyes - - describe his eyes?

       {¶11} “A. Bloodshot, watery, I mean, displayed everything. Like I said, slurred

speech, his motor skills were slowed. He just - - you know you could tell he was under

the influence of alcohol.

       {¶12} “Q. As he was walking around, did he appear to be unsteady or describe

his walking.

       {¶13} “A. Yeah, he was just real kind of slow and lethargic.” Transcript at 144.

       {¶14} On cross-examination, Deputy Dore testified that he did not observe any

impaired driving by appellant while following appellant for approximately 1.8 miles.

       {¶15} At trial, Deputy Charles Gannon, who had been called by Deputy Dore as

back-up, testified that he had contact with appellant and that he detected a very strong

odor of an alcoholic beverage coming from appellant’s person. Deputy Gannon further

testified that appellant’s eyes were red, glassy and bloodshot, his speech was slurred

and that appellant was swaying back and forth.
Delaware County App. Case No. 11CAC030025                                                 5


       {¶16} At the conclusion of the evidence and the end of deliberations, the jury, on

February 8, 2011, found appellant guilty of use of unauthorized (fictitious) plates, driving

under an OVI suspension, and operating a vehicle while under the influence of alcohol

and refusing a chemical test. The trial court convicted appellant of driving under an

FRA suspension and found appellant not guilty of having no operator’s license. As

memorialized in a Judgment Entry filed on February 8, 2011, appellant was sentenced

to an aggregate sentence of 250 days in jail. The trial court also fined appellant, ordered

that his driver’s license be suspended for 10 years and placed him on community

control for a period of five years.

       {¶17} Appellant now raises the following assignments of error on appeal:

       {¶18} “I. THE TRIAL COURT ERRED IN DENYING MR. SULLIVAN’S

CRIMINAL RULE 29 MOTION FOR ACQUITTAL ON THE OVI CHARGE AS THE

EVIDENCE WAS INSUFFICIENT TO CONVICT HIM.

       {¶19} “II. MR. SULLIVAN’S CONVICTION FOR OVI IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

       {¶20} “III. THE MISCONDUCT OF THE PROSECUTING ATTORNEY IN

ARGUING HIS PERSONAL BELIEFS REGARDING MR. SULLIVAN’S CREDIBILITY IN

CLOSING ARGUMENTS DENIED MR. SULLIVAN HIS RIGHT TO A FAIR TRIAL.

       {¶21} “IV. COUNSEL FOR MR. SULLIVAN WAS INEFFECTIVE AS THE

RESULT OF HIS CUMULATIVE ERRORS AND THIS DENIED MR. SULLIVAN A FAIR

TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.”
Delaware County App. Case No. 11CAC030025                                                 6


                                               I, II

       {¶22} Appellant, in his first assignment of error, argues that the trial court erred

in denying his Crim.R. 29 motion for acquittal as to the charge of operating a motor

vehicle while under the influence of alcohol. In his second assignment of error, he

argues that his conviction for such offense is against the manifest weight of the

evidence.

       {¶23} In determining whether a trial court erred in overruling an appellant's

motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the

evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 1995–Ohio–104, 651

N.E.2d 965; State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991).

       {¶24} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. Jenks,

supra. “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.” Jenks at paragraph two of

the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). On review for manifest weight, a reviewing court is to examine the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of witnesses

and determine “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 reversed

and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st.

Dist. 1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52, 678
Delaware County App. Case No. 11CAC030025                                                 7


N.E.2d 541. The granting of a new trial “should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.” Martin at 175.

       {¶25} Appellant specifically contends that there was insufficient evidence that his

consumption of alcohol impaired, to a noticeable degree, his ability to operate a motor

vehicle and that there was no evidence that he was under the influence. Appellant notes

that the deputies did not observe any impaired driving during the 1.8 miles that they

followed appellant.

       {¶26} However, under our review of the evidence, we find that, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found that appellant committed the offense of driving under the influence of alcohol. We

further find that the jury did not lose its way in convicting appellant of such offense. As

is stated above, appellant failed to stop after Deputy Dore activated his lights and went

through two traffic lights.   When Deputy Dore finally stopped appellant, appellant

smelled of alcohol and told the deputy that he had imbibed four beers. Appellant was

argumentative, his speech was slurred and he had slowed motor skills. Deputy Dore

further testified that appellant’s eyes were bloodshot and watery and that appellant was

slow and lethargic. Deputy Gannon testified similarly.

       {¶27} Furthermore, appellant refused to take a breathalyzer test. Evidence of a

refusal to submit to a chemical test can be used against a defendant at trial. See

Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968) and State v.

Wise, 5th Dist. No. 2008-CA-9, 2008-Ohio-7003 at paragraphs 82-83. Appellant also

refused to submit to field sobriety tests. A defendant’s refusal to perform such tests is
Delaware County App. Case No. 11CAC030025                                                   8

admissible as evidence of guilt on an OVI charge. See State v. Holnapy, 8th Dist. No.

2010-L-072, 2011-Ohio-2995.

       {¶28} Based on the foregoing, appellant’s first and second assignments of error

are overruled.

                                             III

       {¶29} Appellant, in his third assignment of error, argues that he was denied his

right to a fair trial due to misconduct of the prosecuting attorney “in arguing his beliefs

regarding [appellant’s] credibility.”

       {¶30} The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper and if so, whether those comments and remarks

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct, it is

our duty to consider the complained of conduct in the context of the entire trial. Darden

v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial is not

unfair, if, in the context of the entire trial, it appears clear beyond a reasonable doubt the

jury would have found the defendant guilty even without the improper comments. State

v. Treesh, 90 Ohio St.3d 460, 464, 2001-Ohio-4, 739 N.E.2d 749. Furthermore, both

the prosecution and the defense have wide latitude during opening and closing

arguments.

       {¶31} However, a prosecutor may not express his personal belief or opinion as

to the credibility of a witness, the guilt of an accused or allude to matters that are not

supported by admissible evidence. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d

883 (1984). The wide latitude given the prosecution during closing arguments “does not
Delaware County App. Case No. 11CAC030025                                               9


‘encompass inviting the jury to reach its decision on matters outside the evidence

adduced at trial.’” State v. Hart, 8th Dist. No. 79564, 2002–Ohio–1084, at 3, citing State

v. Freeman, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (1st Dist. 2000).

       {¶32} In the case sub judice, appellant specifically takes issue with the following

comments made by the prosecuting attorney during closing arguments:

       {¶33} “The question is, was the defendant impaired while he was driving. And I

submit to you that that’s been proven beyond a reasonable doubt.

       {¶34} “First of all, the direct evidence. The direct evidence you have Number (1)

is that the defendant was drinking and he admitted to having been drinking at the

Eagle’s.   He admitted to having drunk four beers.            Now, you may think he

underestimated, and I suspect the officers did think he underestimated, but, regardless,

he felt when he was asked the question how many beers or how much he had been

drinking he felt the need to admit four beers.

       {¶35} “Now, I suggest to you from that you can conclude a couple things.

Number (1) that he was drinking more than four beers, but that he was drinking a lot

because he had to admit four beers to even keep a straight face. You can take that for

what it’s worth, but he admitted four beers, he admitted he’d been drinking at the

Eagle’s.” Transcript at 237-238.

       {¶36} Appellant, in his brief, concedes that defense counsel failed to object to

such statements. “Absent plain error, an appellate court will not consider errors that the

defendant failed to object to at the trial level.” State v. Thompson, 127 Ohio App.3d 511,

522, 713 N.E.2d 456 (8th Dist. 1998). Crim.R. 52(B) provides that, “[p]lain errors or

defects affecting substantial rights may be noticed although they were not brought to the
Delaware County App. Case No. 11CAC030025                                               10


attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. In order to find plain error under Crim R. 52(B), it must

be determined, but for the error, the outcome of the trial clearly would have been

otherwise. Id. at paragraph two of the syllabus.

       {¶37} Assuming arguendo, that such comment was improper, we find that,

based on the overwhelming evidence of appellant's guilt, as set forth in detail in the

statement of facts, the outcome of the trial would not have been different but for such

alleged error. We find no plain error.

       {¶38} Based on the foregoing, appellant's third assignment of error is overruled.

                                               IV

       {¶39} Appellant, in his fourth assignment of error, argues that he received

ineffective assistance of trial counsel.

       {¶40} To show ineffective assistance of counsel, appellant must satisfy a two-

prong test. Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052 (1984). First,

he must show that his trial counsel engaged in a substantial violation of any essential

duty to his client. State v. Bradley, 42 Ohio St.3d 136, 141, 538 N.E.2d 373 (1989),

quoting State v. Lytle, 48 Ohio St.2d 391, 396, 358 N.E.2d 623 (1976). Second, he must

show that his trial counsel's ineffectiveness resulted in prejudice. Bradley, at 141–142,

quoting Lytle, at 396–397. “Prejudice exists where there is a reasonable probability that

the trial result would have been different but for the alleged deficiencies of counsel.”

Bradley, ¶ three of the syllabus.
Delaware County App. Case No. 11CAC030025                                                   11


       {¶41} Appellant initially argues that his trial counsel was ineffective in moving to

admit Exhibit 4 and Defendant’s Exhibit A, a photocopy of appellant’s traffic ticket,

without redacting the information regarding appellant’s prior OVI convictions. The ticket

indicated that appellant had six (6) prior OVI’s.       Appellant notes that the parties

stipulated prior to trial that appellant had a prior OVI in 2007 to prevent appellee from

introducing evidence of the fact that appellant had five other prior convictions for OVI.

       {¶42} However, we note that the jury was instructed that the evidence did not

include the complaint (i.e.-ticket). Moreover, based on the overwhelming evidence of

appellant’s guilt, we cannot say that the outcome of appellant’s trial would have been

different had the information on the ticket regarding the prior OVI’s been redacted.

       {¶43} Appellant next argues that trial counsel was ineffective in failing to object

to Deputy Dore’s testimony that appellant had prior OVI’s. During cross-examination,

defense counsel asked Deputy Dore why appellant’s car was towed and Deputy Dore

responded that it was because appellant had prior OVI’s. The Deputy did not specify

how many prior OVI’s appellant had. Appellant now maintains that trial counsel was

ineffective in failing to object to such testimony.

       {¶44} However, as noted by appellee, the jury was aware that appellant had a

prior OVI. The jury was informed of the parties’ stipulation that appellant had been

convicted of OVI in 2008 and that appellant’s driver’s license had been suspended for a

period of ten years.     Trial counsel's failure to object may have been a tactical or

strategic decision. Tactical or strategic trial decisions, even if ultimately unsuccessful,

do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545,
Delaware County App. Case No. 11CAC030025                                               12


558, 651 N.E.2d 965 (1995).      Moreover, based on the overwhelming evidence, we

cannot say that the outcome of the trial would have been different had counsel objected.

      {¶45} Appellant next maintains that his counsel was ineffective in failing to object

to the State's use of leading and compound questions on direct examination of the

deputies. Evid.R. 611 provides “[l]eading questions could not be used on the direct

examination of a witness except as may be necessary to develop his testimony.”

      {¶46} The Ohio Supreme Court has held that the failure to object to leading

questions does not usually constitute ineffective assistance of counsel. State v.

Jackson, 92 Ohio St.3d 436, 449, 2001-Ohio-1266, 751 N.E.2d 946. The failure to

object is not a per se indicator of ineffective assistance of counsel, because sound trial

strategy might well have been not to interrupt. See State v. Gumm, 73 Ohio St.3d 413,

428, 653 N.E.2d 253 (1995). The questions, though leading, were mainly used to

develop the officer's testimony; or were inconsequential and trial counsel might well

have not wanted to interrupt the proceedings at the very outset. Furthermore, based on

the overwhelming evidence of appellant’s guilt, we cannot say that the outcome of

appellant’s trial would have been different had defense counsel objected.

      {¶47} Appellant also argues that his trial counsel was ineffective in failing to

object to Deputy Dore testifying from his police report. Appellant notes that Deputy Dore

was the primary witness against him and that the case was built upon his testimony.

      {¶48} In State v. Neeley, 2nd Dist. No. 20842, 2006-Ohio-418, the appellant

argued that his trial counsel was ineffective in failing to object when two of the State’s

witnesses, the coroner and a DNA expert, consulted their written reports during their

testimony. The court, in Neeley, stated, in relevant part, as follows: “Evid.R. 612 permits
Delaware County App. Case No. 11CAC030025                                                13


writings to be used to refresh memory while the witness is testifying. That is what

occurred here. We see no error merely because the witness did not declare what was

already obvious: that the witness' memory had been refreshed by his report. Defense

counsel did not perform deficiently by failing to object to the fact that two of the State's

witnesses consulted their written reports in order to refresh their recollection while

testifying. No ineffective assistance of counsel is demonstrated.” Id at paragraph 39.

Moreover, in the case sub judice, Deputy Gannon testified also. Deputy Charles

Gannon testified that he had contact with appellant and that he detected a very strong

odor of an alcoholic beverage coming from appellant’s person. Deputy Gannon further

testified that appellant’s eyes were red, glassy and bloodshot, his speech was slurred

and that appellant was swaying back and forth. Thus, there was other evidence

corroborating Deputy Dore’s testimony. Moreover, there was evidence that appellant

refused both the field sobriety and breathalyzer tests.

       {¶49} Appellant finally contends that his trial counsel was ineffective for

beginning his cross-examination of Deputy Dore with the statement that “it sounds

pretty bleak.” We note that, immediately after making such statement, defense counsel

indicated that he wanted to ask Deputy Dore very specific questions about his

testimony, implying that he was challenging the Deputy’s credibility. Moreover,

assuming, arguendo, that counsel was ineffective in making such statement, we cannot

say, based on the overwhelming evidence, that the outcome of the trial could have been

different had such statement not been made.
Delaware County App. Case No. 11CAC030025                                            14


      {¶50} Appellant’s fourth assignment of error is, therefore, overruled.

      {¶51} Accordingly, the judgment of the Delaware Municipal Court is affirmed.




By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d0516
[Cite as Sunbury v. Sullivan, 2012-Ohio-3699.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


THE VILLAGE OF SUNBURY, OHIO                     :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
GARY M. SULLIVAN                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 11CAC030025




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware Municipal Court is affirmed. Costs assessed to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
