[Cite as Columbus v. Oppong, 2016-Ohio-5590.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT



City of Columbus,                               :

                Plaintiff-Appellee,             :
                                                                 No. 15AP-1059
v.                                              :        (M.C. No. 2015 TRC 100060)

Kwadwo A. Oppong,                               :        (REGULAR CALENDAR)

                Defendant-Appellant.            :



                                       D E C I S I O N

                                   Rendered on August 30, 2016


                On brief: Richard C. Pfeiffer, Jr., City Attorney, and
                Garrison P. Carr. Argued: Garrison P. Carr.

                On brief: Eric L. LaFayette.

                      APPEAL from the Franklin County Municipal Court

SADLER, J.
        {¶ 1} Defendant-appellant, Kwadwo A. Oppong, appeals from a judgment of the
Franklin County Municipal Court finding him guilty of operating a vehicle under the
influence ("OVI") and two traffic violations. For the reasons that follow, the judgment of
the trial court is affirmed.
I. BACKGROUND
        {¶ 2} On January 2, 2015 at 7:38 p.m., appellant was charged with OVI-impaired,
pursuant to Columbus Traffic Code 2133.01(A)(1)(a), failure to stop after an accident or
collision ("failure to stop"), pursuant to Columbus Traffic Code 2135.12(A), and assured
clear distance ahead ("ACDA"), pursuant to Columbus Traffic Code 2133.03(A).
Appellant pled not guilty to the charges, and the case proceeded to a jury trial
commencing October 19, 2015.
No. 15AP-1059                                                                              2


       {¶ 3} Plaintiff-appellee, City of Columbus, made a motion in limine at the outset
of the trial to attempt to exclude potential testimony by appellant, a lay witness,
concerning the effects of his blood sugar. The trial court deferred ruling on the matter
until the point of testimony.
       {¶ 4} During opening statements, defense counsel asserted that the jury would
hear that diabetic episodes mimic impairment from alcohol in many ways. The trial court
sustained appellee's ensuing objection, specifying that while appellant could testify
regarding what he felt like and his symptoms, he was precluded from saying he had a
diabetic episode or making the blanket statement that a diabetic episode mimics someone
who is under the influence of alcohol. The trial court indicated that to do so, defense
counsel would need to call an expert to testify. Appellee then produced the following
relevant evidence in its case-in-chief.
       {¶ 5} Jodie Pierpoint testified that on the evening of January 2, 2015 at about
7:00 p.m., a car rear-ended her car while she was stopped at a traffic light. According to
Pierpoint, after hitting her car, the other car drove to the left around her car and
disappeared out of sight. Pierpoint remained in her own car until police arrived and later
saw smoke around the intersection of Chillmark and North Hamilton Road. She did not
see the driver of the car that hit her. As a result of the accident, she had to have the rear
end of her car "completely redone." (Tr. Vol. II at 174.)
       {¶ 6} Michael Patrick Shea testified that on the same evening, he drove behind a
car that was driving erratically—driving left of center, going off of the right-hand side of
the road, and almost sideswiping three cars while attempting a turn. He observed that
same car hit a car stopped on Hamilton Road near Chillmark. According to Shea, the
driver rear-ended the stopped car without attempting to slow down, drove around the car,
went completely off Hamilton Road and headed southbound on the grass and gravel, re-
entered Hamilton Road but quickly ended up in a ditch, and proceeded to hit a traffic sign
at Hamilton Road and Chillmark. Shea pulled over near the car that had hit the other car,
opened the door, and asked the driver if he was okay.
       {¶ 7} According to Shea, the driver, who Shea later identified in court as
appellant, responded that he was okay, denied hitting anything, and stated that he was
going home. Shea then had what he described as an altercation with appellant over the
No. 15AP-1059                                                                             3


car keys because appellant was attempting to and actually did restart the car. After Shea
succeeded in turning the car off, appellant exited the car out of the passenger side door
and walked west on Chillmark. Shea waited at appellant's car for police to arrive. Shea
testified that during the encounter, appellant slurred his speech and had a "fairly strong"
smell of alcohol on his breath. (Tr. Vol. II at 189.) In Shea's opinion, appellant was
impaired by alcohol.
       {¶ 8} On cross-examination, Shea testified that appellant did not stagger or
stumble as he walked away from the car. Shea also stated that he would not be able to tell
the difference between alcohol impairment and a medical problem related to diabetes.
       {¶ 9} Jacob Day, an advanced training officer for the Columbus Division of Police,
testified that on January 2, 2015, he responded to a dispatch to look for a driver that fled
an accident on foot. According to Day, he located the suspect, who he later identified in
court as appellant, about one and one-half blocks away from the location of the accident.
Day described appellant as having very slurred speech, eyes which were glassy and
bloodshot, and a "strong odor of alcoholic beverage coming off his person." (Tr. Vol. II at
211.) Appellant was very confused and disoriented and was not able to explain where he
was coming from or where he was going. Based on previous OVI arrests Day had made
and his observations of appellant, particularly the strong odor of alcohol on appellant's
breath, Day believed appellant was under the impairment of drugs or alcohol. Day and
accompanying officers detained appellant and transported him to the investigating
officer. When Day assisted in removing appellant from the police vehicle, the odor of
alcohol was still strong.
       {¶ 10} Day testified on cross-examination that appellant was walking normally
down the sidewalk when officers found him but did not speak coherently in response to
the officers' questions. Day additionally answered that he did not have enough medical
training to know if appellant was impaired from something other than alcohol and that he
was not aware of other medical conditions that cause a fruity odor on a person's breath
that can be mistaken for alcohol. Day agreed that other medical conditions could cause
confusion, slurred speech, and glassy eyes.
       {¶ 11} Prior to resuming trial with appellee's next witnesses, the parties again
discussed the extent to which appellant could discuss his alleged diabetic condition and
No. 15AP-1059                                                                                4


the pills he did or did not take the day of the accident. Appellee argued that a letter1 from
appellant's doctor provided in discovery undermines the credibility of the current defense
theory. According to appellee, the letter states that appellant has hypoglycemia and does
not discuss diabetes and states that the combination of two medications is what caused
him to drive erratically, which does not support appellant's contention that his failure to
take his medications resulted in his behavior. In response, defense counsel references not
being able to get a doctor to testify and, as a result, expresses her understanding that
appellant's testimony must be limited to his personal experiences and observations.
Defense counsel reiterated that she believed these personal observations should include
what pills he took and why and how the pills or lack of the pills made him feel. After an
extensive discussion, the trial court judge expressed a willingness to permit testimony
from appellant to the effect that he is prescribed drugs for a medical condition and his
personal observation of the effects that either taking or not taking the drugs has on him.
           {¶ 12} The trial resumed, and Thomas Baughn, an officer with the Columbus
Division of Police, testified to serving as the investigating officer at the scene of the
accident. When assisting officers with appellant, Baughn smelled a "moderate odor" of
alcohol coming from him both while appellant was inside the police wagon and once he
was outside of the wagon. (Tr. Vol. II at 260.) At that point, Baughn started noticing
other signs of impairment. Appellant seemed unsteady on his feet, slurred his words, and
his eyes were red, bloodshot, and glassy. In response to Baughn's question about whether
he had anything to drink that night, appellant answered that he had one glass of wine.
           {¶ 13} In anticipation of administering field sobriety tests, Baughn asked appellant
basic questions including whether appellant was sick or had any illness. According to
Baughn, appellant answered that he had diabetes and stated that he had taken his
medication that day. Baughn then administered the horizontal gaze nystagmus ("HGN")
test, the walk-and-turn test, and the one-leg-stand test. Appellant failed all three tests,
exhibiting six out of six possible clues in performing the HGN test, five or six clues out of
eight possible clues on the walk-and-turn test, and two or three clues in performing the
one-leg-stand test. Baughn placed appellant under arrest for OVI, as well as ACDA and
failure to stop based on the accident and leaving the scene.

1   The letter is not contained in the record on appeal.
No. 15AP-1059                                                                              5


       {¶ 14} Appellant consented to a breath test, and Baughn transported appellant to
the Columbus Police Department for administration of the test.            Baughn observed
appellant attempt the test twice. According to Baughn, appellant puffed his checks but
did not appear to be blowing into the mouthpiece. As a result, the two attempts were
considered refusals. Baughn transported appellant back to his home to turn him over to
his family, where appellant yelled obscenities at Baughn and became "disorderly" prior to
entering his home. (Tr. Vol. II at 281.)
       {¶ 15} On cross-examination, Baughn testified that after appellant failed the
breath tests, he did not offer appellant a blood test or a urinalysis and did not remember if
appellant asked to have a urinalysis test. Baughn additionally agreed that, according to
the instruction manual for the field sobriety tests, it was possible that medical conditions
could cause a person to fail various tests and that he did not look for a medical reason for
his behavior. Baughn indicated that he believed diabetes could cause odors to be emitted
from a person's breath.
       {¶ 16} Marcus Miller, a patrol officer and senior blood alcohol content ("BAC")
operator with the Columbus Division of Police, testified to administering appellant's BAC
breath test. According to Miller, when appellant entered the testing room, appellant had
the odor of an alcoholic beverage and slurred his speech. Appellant said he understood
the test instructions, but, to Miller, it appeared that appellant was holding his breath and
not blowing into the machine on both test attempts. Miller testified that the machine did
not make a long, continuous tone to indicate air was being blown into the machine but,
instead, beeped indicating no air was entering the system. In Miller's opinion, appellant
did not exhibit signs that he was a "medical rule-out," a term used for those people that
have a medical condition that mimics impairment, and did not otherwise look like he was
having a medical incident. (Tr. Vol. III at 406.)
       {¶ 17} Thereupon, appellee rested its case-in-chief. Exhibits admitted into
evidence without objection included the police cruiser video, photographs of the damaged
car, and BAC exhibits. Appellant moved for a judgment of acquittal under Crim.R. 29,
which the court overruled. Appellant then testified in his own defense.
       {¶ 18} According to appellant, on January 2, 2015, he got up around 7:00 a.m., had
a cup of tea, and took his water pill and cholesterol pill. While he was working around his
No. 15AP-1059                                                                              6


New Albany home, he had about a five-ounce glass of wine at around 11:00 a.m. He got a
call from his nephew that he was stranded at Interstate 23 going to Delaware and needed
help with his car. While appellant's wife wanted him to eat and then take his blood sugar
medication prior to leaving, appellant believed he would be able to quickly help his
nephew so he left without taking his medication. However, the car repair took almost the
whole day, and appellant did not start back toward home until nearly 7:00 p.m. Because
appellant adheres to a particular diet that generally eliminates his ability to eat anything
but home-made food, he did not have anything to eat during the time he helped repair his
nephew's car and was functioning only on the one cup of tea and glass of wine.
       {¶ 19} Appellant testified that he did not remember much about his ride home but
that he felt tired and weak and believes he must have hit the back of a car and ended up
rolling into a ditch. People began to gather around his car, and appellant thought Shea
was an undercover police officer. Appellant continued that, due to taking a water pill
earlier in the day, he needed to urinate so he placed his wallet, glasses, insurance, and
registration in the front seat and headed to a bush less than 50 feet from a Walgreens,
intending to return to the car. After he finished urinating in the bush, appellant saw
police and went to meet them.
       {¶ 20} Appellant told police that he had a glass of wine and then performed the
field sobriety tests without his glasses and without really seeing the test demonstrations
because he did not want to challenge the police. He only partially understood their
directions, was confused by their yelling, and did not think the police listened to his
questions. He begged the police to call his wife, which they did not allow. Police then
handcuffed him and threw him in the back of the cruiser, where appellant felt weak and
could not breathe well. For the subsequent breath test, appellant testified that he blew air
into the straw for both tests and also asked for a urine or blood test, which officers denied
him.   Appellant further testified that he never insulted the police officers when he
returned home.
       {¶ 21} Appellant additionally testified, without objection, regarding the general
effects of taking and missing his medication. According to appellant, when he takes the
medicine he feels normal and when he does not take the medicine he feels tired and testy
and gets a dry mouth and blurry vision. Further, "in severe cases, I'll be having slurred
No. 15AP-1059                                                                             7


speech, lack of concentration, get a heartbeat" and "feel confused." (Tr. Vol. III at 427.)
When he also does not eat, it is "serious" and he gets very weak. (Tr. Vol. III at 427.)
Appellant showed his medical alert necklace in court. Regarding his typical alcohol
consumption, appellant testified that he occasionally consumes wine, mostly around
holidays and special events.
       {¶ 22} On cross-examination, appellant agreed that he did not tell the police officer
that he was not feeling well, such as being weak, tired, thirsty, and having blurry vision
and a dry mouth because the officer was a professional and "could detect all those things"
and because he did not want to have a confrontation with him. (Tr. Vol. III at 449.)
According to appellant, he told the officer he had taken his medication because he had
taken the first two medications that day. A couple of days after the accident, appellant
went to urgent care, returned home, and did not recover for approximately five days.
Appellant further testified that, as a professional commercial driver, he knew that a
person is not supposed to leave the scene of an accident but did so to urinate and intended
to return.
       {¶ 23} Appellant then rested his case.     On October 23, 2015, the jury found
appellant guilty of OVI and failure to stop, and the judge found appellant guilty of ACDA.
For the OVI, the judge sentenced appellant to 3 days in a driver intervention program in
lieu of jail, suspended appellant's license for 180 days, and imposed $375 in fines and
court costs. For the failure to stop, the judge sentenced appellant to 180 days in jail with
180 days suspended and suspended appellant's license for 180 days over the same date
span as the OVI. The judge authorized occupational driving privileges. For the ACDA, the
judge imposed a fine of $25.
       {¶ 24} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
       {¶ 25} Appellant submits one assignment of error for our review:
              THE DEFENDANT'S RIGHT TO A FAIR TRIAL UNDER THE
              SIXTH AMENDMENT AND APPLICABLE THROUGH
              FOURTEENTH AMENDMENT OF THE CO[N]STITUTION
              WERE VIOLATED AS THE TRIAL COUNSEL'S ACTIONS
              RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL.
No. 15AP-1059                                                                               8


III. STANDARD OF REVIEW
       {¶ 26} "The benchmark for judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of the adversarial process that
the trial [court] cannot be relied on as having produced a just result." Strickland v.
Washington, 466 U.S. 668, 686 (1984). "To establish a claim of ineffective assistance of
counsel, a defendant must show that the performance of trial counsel was deficient and
that the deficient performance prejudiced him." State v. Frye, 10th Dist. No. 14AP-988,
2015-Ohio-3012, ¶ 11, citing Strickland at 687.
       {¶ 27} To demonstrate that counsel's performance was deficient, the defendant
must show that counsel made errors so serious that counsel was not functioning as the
counsel guaranteed by the Sixth Amendment. State v. Canada, 10th Dist. No. 14AP-523,
2015-Ohio-2167, ¶ 89. In doing so, the defendant must overcome the strong presumption
that counsel's performance was adequate or that counsel's actions might be considered
sound trial strategy.     Id. at ¶ 90.   To demonstrate that the deficient performance
prejudiced him, the defendant must prove that there exists a reasonable probability that,
but for counsel's errors, the result of the trial would have been different. Strickland at
694. "The failure to make either showing defeats a claim of ineffective assistance of
counsel." Frye at ¶ 11, citing Strickland at 697.
IV. DISCUSSION
       {¶ 28} In his sole assignment of error, appellant contends that he was deprived of
the effective assistance of counsel because his trial counsel failed to investigate and call
certain witnesses. As such, appellant asks us to remand the case to the trial court for a
new trial. We disagree.
       {¶ 29} Defense counsel's duty to investigate under Strickland is met if counsel
" 'make[s] reasonable investigations' before trial." State v. Thompson, 141 Ohio St.3d 254,
2014-Ohio-4751, ¶ 247, quoting Strickland at 691. Where the record on appeal does not
indicate the extent of counsel's pretrial investigation, an appellate court "will not 'infer a
defense failure to investigate from a silent record.' " Id., quoting State v. Were, 118 Ohio
St.3d 448, 2008-Ohio-2762, ¶ 244.
       {¶ 30} Furthermore, the decision not to seek expert testimony or call a certain
witness is often a matter of trial strategy as the resultant testimony may be unpredictable
No. 15AP-1059                                                                                9


or even unfavorable to the defendant. Id.; State v. Harris, 10th Dist. No. 15AP-683, 2016-
Ohio-3424, ¶ 61. " 'Tactical or strategic trial decisions, even if ultimately unsuccessful,
will not substantiate a claim of ineffective assistance of counsel.' " Id., quoting State v.
Ryan, 10th Dist. No. 08AP-481, 2009-Ohio-3235, ¶ 77. As a result, the decision whether
or not to call a witness generally does not deprive a defendant of the effective assistance of
counsel absent a showing of prejudice. Id., citing State v. Roush, 10th Dist. No. 12AP-201,
2013-Ohio-3162, ¶ 40. Likewise, trial counsel's decision to rely on cross-examination in
lieu of calling an expert witness does not constitute ineffective assistance of counsel.
Thompson; Harris.
       {¶ 31} Appellant specifically takes issue with his trial counsel's failure to interview,
subpoena, or call as a witness appellant's doctor, nephew, and wife. In support of his
argument, appellant cites Middletown v. Allen, 63 Ohio App.3d 443 (12th Dist.1989), for
the proposition that "where counsel is aware of an essential potential witness and fails to
interview or subpoena them, it constitutes ineffective assistance of counsel." (Appellant's
Brief at 7.)
       {¶ 32} In Allen, the defendant claimed he was denied the effective assistance of
counsel as a result of trial counsel's failure to subpoena his friends who would have
provided an alibi defense. The record in Allen showed that one particularly crucial friend
"previously indicated that he would testify on appellant's behalf but counsel took no
action to ensure the witness's presence at trial" and instead told the defendant to
subpoena his friends himself. Id. at 447. Accordingly, the court ruled that counsel's
failure to subpoena an alibi witness, which was a delegation of a substantial duty, denied
appellant the effective assistance of counsel.       Id. at 448.    In doing so, the court
emphasized that the witnesses at issue "clearly would have assisted the defense," and the
lack of their testimony was prejudicial because they "would not have merely corroborated
appellant's testimony but could have provided an alibi to a weakly supported theft
offense" presented by the city. Id.
       {¶ 33} Appellant contends that, like in Allen, his doctor was necessary to
maintaining his defense that his actions were attributable to a diabetic episode, rather
than the influence of alcohol, and would have testified to the effects a diabetic episode
would have had on appellant. Appellant additionally contends that his nephew and wife
No. 15AP-1059                                                                             10


would have testified regarding "a timeline for non-alcohol use throughout most of the
day," and his wife was willing to testify regarding appellant's subsequent urgent care visit.
(Appellant's Brief at 7.)
       {¶ 34} We find Allen, an alibi witness case with record support regarding the
would-be testimony, readily distinguishable from the present case. Foremost, unlike
Allen, appellant's arguments regarding his counsel's alleged deficient performance are
based on speculation. Besides defense counsel's testimony alluding to being unable to
secure a doctor, the record does not indicate the extent of defense counsel's pretrial
investigation. We cannot infer that defense counsel failed to investigate these witnesses
to the extent to deprive appellant of a fair trial. Thompson at ¶ 247. The record likewise
does not establish that defense counsel's decision to not subpoena appellant's doctor,
nephew, and wife was anything but a matter of trial strategy. Unlike Allen, the record
does not support that the witnesses "clearly would have assisted the defense." Id. at 448.
Moreover, as previously stated, trial counsel's decision to rely on cross-examination to
advance a defense in place of calling a witness does not constitute ineffective assistance of
counsel. Thompson; Harris. In other words, this record does not show defense counsel
made errors so serious that she was not functioning as the counsel guaranteed by the
Sixth Amendment. As such, appellant has not met his burden in showing defense counsel
performed deficiently in preparation for and at trial.
       {¶ 35} In addition, appellant has not established prejudice as a result of this
alleged deficiency. As previously discussed, his prediction as to what the doctor, nephew,
and wife would have testified is hypothetical and without a basis in the record. Even if
these witnesses would have testified as he expected, the jury heard and rejected the idea
that appellant's alleged diabetic episode or other medical malady explained away evidence
of alcohol impairment. Furthermore, unlike Allen, appellee presented overwhelming
evidence in support of convicting appellant. On this record, appellant has not shown that
there exists a reasonable probability that, but for counsel's errors, the result of the trial
would have been different. Therefore, appellant has not met his burden in demonstrating
that defense counsel's alleged deficient performance prejudiced him.
No. 15AP-1059                                                                            11


       {¶ 36} Considering all the above, appellant has not demonstrated that trial
counsel's actions denied him effective assistance of counsel. Accordingly, appellant's sole
assignment of error is overruled.
V. CONCLUSION
       {¶ 37} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Municipal Court.
                                                                      Judgment affirmed.

                            BROWN and KLATT, JJ., concur.
                                    _______________
