[Cite as State v. Snider, 2017-Ohio-2795.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO/CITY OF LORAIN                          C.A. No.         16CA010931

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CHRISTOPHER SNIDER                                    LORAIN MUNICIPAL COURT
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   2014TRC04591

                                  DECISION AND JOURNAL ENTRY

Dated: May 15, 2017



        CALLAHAN, Judge

        {¶1}     Christopher Snider appeals his convictions from the Lorain Municipal Court. This

Court affirms.

                                                 I.

        {¶2}     Mr. Snider was arrested for operating a vehicle under the influence of alcohol or

drugs (“OVI”) in violation of R.C. 4511.19(A)(1)(a), OVI refusal in violation of

4511.19(A)(2)(b), driving under OVI suspension in violation of 4510.14(A), and driving outside

of marked lanes in violation of R.C. 4511.33. The matter proceeded through pretrial and

discovery without the filing of a motion to suppress evidence. After a bench trial, the court

found Mr. Snider guilty on all of the counts, except the OVI refusal.

        {¶3}     Mr. Snider appeals raising one assignment of error.
                                                  2


                                                  II.

                                    ASSIGNMENT OF ERROR

       APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO
       LITIGATE, PRIOR TO TRIAL, THE ADMISSIBILITY OF THE FIELD
       SOBRIETY TESTS.     ACCORDINGLY, APPELLANT WAS DENIED
       EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH
       AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS HIS RIGHTS
       UNDER SECTION 10, ARTICLE I, OHIO CONSTITUTION.

       {¶4}    In his sole assignment of error, Mr. Snider contends his trial counsel was

ineffective in failing to file a motion to suppress the field sobriety tests because, had a motion

been filed, it would have been granted by the trial court.

       {¶5}    Failing to file a motion to suppress is not per se ineffective assistance of counsel.

State v. Madrigal, 87 Ohio St.3d 378, 389 (2000). As with other ineffective assistance of

counsel claims, “a defendant ‘must show (1) deficient performance by counsel, i.e., performance

falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that but for counsel's errors, the proceeding’s result would have been

different.’” State v. Clayton, 9th Dist. Summit No. 27352, 2015-Ohio-498, ¶ 25, quoting State v.

Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668,

687-688 (1984). “‘A defendant's failure to satisfy one prong of the Strickland test negates a

court’s need to consider the other.’” Clayton at ¶ 25, quoting Madrigal at 389.

       {¶6}    Prejudice is shown when the defendant proves “that there exists a reasonable

probability that, were it not for counsel’s errors, the result of the trial would have been different.”

State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. “[O]nly an error by

counsel that effects the final judgment in a criminal proceeding warrants an appellate court

setting aside the trial court’s final judgment.” Akron v. Buchwald, 9th Dist. Summit No. 21433,

2003-Ohio-5044, ¶ 11, citing Strickland at 691.           When a defendant alleges counsel was
                                                3


ineffective for failing to file a motion to suppress, the defendant must establish not only that

there was a basis to suppress the evidence in question, but also “‘a reasonable probability that,

without the excluded evidence, the defendant would have been acquitted.’” Clayton at ¶ 26,

quoting State v. Rucker, 9th Dist. Summit No. 25081, 2010-Ohio-3005, ¶ 46.

       {¶7}    This Court will analyze the prejudice prong of the Strickland test because a

careful analysis shows that Mr. Snider did not suffer prejudice as a result of trial counsel’s

failure to file a motion to suppress. Despite Mr. Snider’s contention that had a motion been filed

it would have been granted, to establish prejudice he must also show that, had the evidence been

excluded, there was a reasonable probability he would have been acquitted.

       {¶8}    Mr. Snider contends his trial counsel should have challenged the walk-and-turn

test and the horizontal gaze nystagmus (“HGN”) test. He argues that Deputy Bungard failed to

substantially comply with the NHTSA manual and, had a motion to suppress been filed, it would

have been granted and testimony about the results of those tests would have been excluded.

       {¶9}    Even if a court finds that the officer did not substantially comply with the NHTSA

standards (which would require the results of the tests to be excluded), the officer’s testimony

regarding his observations of the defendant during performance on nonscientific field sobriety

tests is admissible under Evid.R. 701. State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 14-

15. Therefore, assuming arguendo that Deputy Bungard did not substantially comply with the

NHTSA manual requirements for administering the HGN and the walk-and-turn field sobriety

tests, only his testimony about the HGN test would have properly been excluded had trial

counsel filed a motion to suppress.

       {¶10} In this case, Deputy Bungard conducted or attempted to conduct numerous

nonscientific field sobriety tests in addition to the walk-and-turn test. He attempted to conduct
                                                4


the one-legged stand test but Mr. Snider said his legs were shaking and he could not perform the

test. Deputy Bungard then attempted the alphabet test but Mr. Snider refused. Deputy Bungard

then tried the basic finger test. Mr. Snider attempted that test but was unsuccessful and then

stopped the test.    Deputy Bungard’s testimony regarding his observations of Mr. Snider’s

performance on these tests, as well as the walk-and-turn test, was admissible and properly before

the court for consideration.

       {¶11} In addition to his testimony about the field sobriety tests, Deputy Bungard

testified that he initially observed Mr. Snider sharply veer into the right lane without using his

turn signal, pass several other vehicles, then run his rear passenger tire over the curb as he

returned to his original lane of travel. Because a minivan that was between his cruiser and Mr.

Snider’s vehicle blocked his view, Deputy Bungard moved toward the center line to further

observe Mr. Snider’s vehicle. Mr. Snider’s vehicle was still not in Deputy Bungard’s line of

vision and the deputy inferred that the vehicle may have gone off the berm.

       {¶12} After stopping Mr. Snider’s vehicle, Deputy Bungard approached its passenger

side and smelled alcohol emitting from the vehicle. When another officer arrived on the scene,

Deputy Bungard switched to the driver’s side and found that the odor of alcohol emitting from

Mr. Snider’s person was more prominent. Deputy Bungard testified that Mr. Snider’s eyes were

glassy and that his mood would fluctuate from very argumentative to very emotional. Mr. Snider

denied consuming any alcohol.

       {¶13} Deputy Bungard learned that Mr. Snider had a prior conviction for an OVI within

six years and that he was under an OVI suspension that restricted him to driving a vehicle with

an interlock device. The vehicle driven by Mr. Snider did not have an interlock device. Mr.

Snider refused to take the breath test.
                                                  5


       {¶14} In pertinent part, R.C. 4511.19(A)(1)(a) prohibits a person from operating a

vehicle while under the influence of alcohol. If the consumption of alcohol “‘adversely affect[ed]

his actions, reactions, conduct, movement or mental processes or impairs his reactions to an

appreciable degree, thereby lessening his ability to operate a motor vehicle,’” then the driver was

under the influence. State v. Adams, 9th Dist. Medina No. 13CA0008-M, 2013-Ohio-4258, ¶ 25,

quoting State v. Smith, 5th Dist. Licking No. 09-CA-42, 2010-Ohio-1232, ¶ 92, quoting Toledo

v. Starks, 25 Ohio App.2d 162, 166 (6th Dist.1971). R.C. 4510.14(A) prohibits a person whose

driver’s license has been suspended for an OVI conviction from operating any motor vehicle

upon the public roads or highways. R.C. 4511.33(A)(1) requires that a person drive, as nearly as

practicable, entirely within a single lane and not move from such lane until first ascertaining that

such movement can be made with safety.

       {¶15} Applying these definitions to the evidence in this case, and excluding any

evidence of the HGN test, there remained sufficient evidence for the trial court to find Mr. Snider

guilty of OVI, driving under OVI suspension, and failing to drive within marked lanes.

Therefore, Mr. Snider is unable to satisfy the prejudice prong of Strickland because there is not a

reasonable probability that, but for his trial counsel’s failure to file a motion to suppress, the

result of his trial would have been different.

       {¶16} Mr. Snider’s sole assignment of error is overruled.

                                                 III.

       {¶17} Mr. Snider’s assignment of error is overruled.          The judgment of the Lorain

Municipal Court is affirmed.

                                                                               Judgment affirmed.
                                                 6




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Lorain Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

DANIELLELA BEARDEN, Attorney at Law, for Appellant.

PATRICK D. RILEY, JEFFREY SZABO, and MALLORY HOLMES, Attorneys at Law, for
Appellee.
