[Cite as State v. Oliver, 2018-Ohio-3667.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 106305




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     ANTONIO OLIVER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-616013-A

        BEFORE: Keough, J., Stewart, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: September 13, 2018
[Cite as State v. Oliver, 2018-Ohio-3667.]
ATTORNEY FOR APPELLANT

Erin E. Hanson
The Rockefeller Building, Suite 1300
614 W. Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kelly Needham
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Oliver, 2018-Ohio-3667.]
KATHLEEN ANN KEOUGH, J.:

        {¶1} Defendant-appellant, Antonio Oliver, appeals his convictions.            For the

reasons that follow, we find no merit to the appeal.

        {¶2} In April 2017, Oliver was named in a six-count indictment charging him with

aggravated burglary, abduction, drug possession, resisting arrest, and two counts of

assault. The case was tried before a jury, and the following evidence was presented.

        {¶3} In the early morning hours of March 25, 2017, Officers Alex Rekhter and

Josh Bayer of the Mayfield Heights police department responded to the Staybridge Suites

to assist with a drunken male asleep outside his hotel room. The officers helped the male

into his hotel room and left the premises. Approximately two and one-half hours later,

they received another call that two men were fighting in the Staybridge Suites lobby.

The events that precipitated this second call started at the side entrance to the hotel.

        {¶4} The jury viewed surveillance video from the Staybridge Suites that showed a

woman, identified as Susan Connors (“Susan”), with her two dogs opening the door for a

male, later identified as Oliver, who was standing outside a side-entrance to the hotel.

The video shows Susan abruptly backing away and retreating as Oliver approached her.

According to Susan, Oliver chased her down the hallway and she screamed for her

sister-in-law, Sandra McLaughlin-Tablers (“Sandra”), to let her into their hotel room.

        {¶5} Sandra testified that she and her husband, James Tabler (“James”)

(collectively “the Tablers”), were getting ready for breakfast when she heard Susan

screaming. Sandra looked outside into the hallway and saw a large man chasing Susan
down the hall. Susan and her dogs were able to get inside the room, but the women

could not shut the door because Oliver was forcing his way into their room. According

to Sandra, Oliver grabbed hold of Susan and then grabbed her, pushing them both through

the kitchen area and toward the bedroom. Sandra stated she tried to prevent Oliver from

going near the bedroom where her husband James was because he was in frail health

following a liver transplant.1

       {¶6} However, James exited the bedroom, and he and Oliver started to struggle.

According to Sandra, she and Susan were trying to push Oliver out of their hotel room,

but also trying to free James from Oliver’s grip. She stated that when they reached the

main hallway, she began screaming for “help,” telling Oliver to “let go,” and asking

people to “help us; he’s on drugs.” According to Sandra, no one helped them until they

reached the main lobby, where an employee assisted them. Sandra testified that she and

James both received bruising to their arms, and her arm was bleeding. She stated that

she was “scared to death” for her safety; she thought “they were all going to die” when

Oliver forced himself into their hotel room.          Susan’s testimony was similar to and

corroborated Sandra’s testimony.

       {¶7} Ivan Mitchell, an employee at Staybridge Suites, testified that he intervened

and assisted the Tablers because they were calling for help. He stated that he saw Oliver



        Sandra, James, and Susan were living at the Staybridge Suites since December 2016 because
       1


his surgery and recovery required them to stay in the area for five months. All three lived out of
state — Sandra and James lived in Louisville, Kentucky, and Susan lived in Jacksonville, Florida.
had a “tight hold” on James’s arm and would not let go of him. Ivan testified that he

tried to get Oliver off of James for a few minutes before he was able to help break James

loose.

         {¶8} The jury also viewed surveillance video from the main lobby area that

captured Oliver holding onto James’s arm and sweatshirt. Sandra and Ivan could be seen

pulling at Oliver and hitting his arm, trying to get him to release James. Susan was on

her cell phone, calling the police.

         {¶9} Officer Robert Lord was the first to respond to the call and found Oliver in

the hotel lobby. Oliver refused to comply with commands to place his hands on the wall;

instead he turned and took steps toward the officer. According to Officer Lord, Oliver

was “likely on drugs” because he was frothing at the mouth, and his eyes were not

“normal” — “he looked at me, but past me.” After Oliver failed to comply with several

warnings, Officer Lord deployed his taser twice. Officers Rekhter and Bayer arrived

following the taser deployment and assisted Officer Lord with Oliver, who they

discovered was the male they previously encountered that morning.

         {¶10} The officers testified that they were able to secure one handcuff on Oliver’s

wrist, but when the taser cycle ended, Oliver grabbed the other loose handcuff and would

not let it go. According to the officers, he became increasingly aggressive and repeatedly

refused requests to place his hands behind his back. The officers had to initiate the taser

seven times in total to finally secure Oliver. The jury watched video and listened to

audio taken from several body cameras of the responding officers.
       {¶11} Once secured, Oliver was transported to the hospital for removal of the taser

barbs and for other medical attention. Officer Lord rode along in the ambulance and said

that during transport, Oliver was not coherent and was unresponsive to medical

assistance. Officer Rekhter testified that when he took Oliver into custody after he was

released from the hospital, Oliver was in disbelief upon learning what had transpired.

       {¶12} Oliver testified in his own defense. He testified that he was staying at the

Staybridge Suites to “cool off” from a disagreement between him and his wife. He stated

that he was drinking alcohol and called a friend to have a drink with him. When his

friend arrived, Oliver went to the friend’s car and smoked PCP. He stated that he does

not do drugs often, but did so on this occasion. Oliver stated that he did not remember

much of what happened after he smoked PCP. He recalled wanting to get back to his

hotel room and vaguely remembered the police officers helping him. He did not recall

the interaction and altercation with the Tablers and Susan. When Oliver was shown the

surveillance video, he admitted that he was the person with Susan in the hallway, and the

one holding onto James in the lobby. He stated that his actions were out of character, but

admitted he should be held responsible for them.

       {¶13} The jury found Oliver not guilty of aggravated burglary, but guilty of the

lesser included offense of burglary; not guilty of abduction, but guilty of the lesser

included offense of unlawful restraint; and not guilty of both counts of assault, but guilty

of drug possession and resisting arrest as charged in the indictment. The trial court

imposed a total jail sentence of six months.
       {¶14} Oliver now appeals, raising four assignments of error.

                                    I. Confrontation

       {¶15} Prior to trial, the state filed a motion requesting that the Tablers be permitted

to testify via Skype, a live video broadcasting link, because they lived out of state and

James was still recovering from his liver transplant and receiving dialysis. The state

requested that Sandra also be allowed to testify via Skype because she was caring for

James. Oliver objected, contending that allowing the victims to testify remotely violated

his right to confrontation, and that the state failed to demonstrate exceptional

circumstances existed to allow for video testimony. Following a hearing, the trial court

issued a written decision, finding that allowing the alleged victims to testify via video was

justified because they lived out of state, and one of the witnesses was on dialysis, making

travel difficult. The court also concluded that the other elements of confrontation would

be satisfied based on its intention to swear in the witnesses, who would be subject to

cross-examination, and the jury and defendant would have the ability to observe the

witnesses’ demeanor. Ultimately, however, only Sandra testified at trial; James did not.

       {¶16} Days before trial was scheduled to commence, the state filed another motion

requesting that Susan be permitted to testify via live broadcast because she lived out of

state and had been in Ohio previously for six months caring for James. The prosecutor

also maintained that Susan had a job, suggesting an added difficulty. The court did not

conduct a hearing or rule on this motion prior to trial.          On the day of trial and

immediately prior to Susan testifying, the trial court considered the motion and Oliver’s
objection.    Oliver argued that a witness’s inconvenience is not an exceptional

circumstance to justify witness testimony by Skype. Additionally, Oliver stated that the

quality of the Skype link used earlier for Sandra’s testimony was not of the same quality

of someone was testifying in the courtroom — there were times the testimony was unable

to be heard and the signal broke up. The court disagreed that the quality was low and

found that the state had remedied any interruption in the video feed by asking the witness

to repeat her answer. The court allowed Susan to testify by Skype.

       {¶17} In his first assignment of error, Oliver contends that the trial court erred by

allowing these two witnesses to testify via live video link, thus depriving him of a

meaningful chance to confront the witnesses against him.

       {¶18} The Sixth Amendment to the United States Constitution provides, “[i]n all

criminal prosecutions the accused shall enjoy the right * * * to be confronted with the

witnesses against him.” The Confrontation Clause of the Sixth Amendment is made

applicable to the states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49,

59, 752 N.E.2d 904 (2001), fn. 4. Consequently, this constitutional right applies to both

federal and state prosecutions, but the right of confrontation in Article I, Section 10 of the

Ohio Constitution provides no greater right of confrontation than the Sixth Amendment.

State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.

       {¶19} However, the United States Supreme Court has held that although “the

Confrontation Clause reflects a preference for face-to-face confrontation at trial,” that

“preference must occasionally give way to considerations of public policy and the
necessities of the case.” Maryland v. Craig, 497 U.S. 836, 849, 110 S.Ct. 3157, 111

L.Ed.2d 666 (1990).

       In holding that the right to confrontation is not absolute, the court detailed a
       number of important reasons for that right, including (1) the giving of
       testimony under oath, (2) the opportunity for cross-examination, (3) the
       ability of the fact finder to observe demeanor evidence, and (4) the reduced
       risk that a witness will wrongfully implicate an innocent defendant.
State v. Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14, citing Craig at

845-846. “The central concern of the Confrontation Clause is to ensure the reliability of

the evidence against a criminal defendant by subjecting it to rigorous testing in the

context of an adversary proceeding before the trier of fact.” Craig at 845.

       {¶20} In Marcinick, this court utilized the two-part analysis from Craig to

determine whether the admission of testimony via teleconference at trial violated the

defendant’s right of confrontation. This court held:

       To qualify as an exception, the procedure must (1) be justified, on a
       case-specific finding, based on important state interests, public policies, or
       necessities of the case and (2) must satisfy the other three elements of
       confrontation — oath, cross-examination, and observation of the witness’s
       demeanor.

Marcinick at ¶ 18, citing Harrell v. State, 709 So.2d 1364, 1369 (Fla.App.1998), citing

Craig at 849-851. Applying the Craig analysis, this court found in Marcinick that the

teleconferencing testimony of the social worker witness who was out of the country, did

not violate the defendant’s right to confrontation because the state demonstrated that the

witness was unavailable, established the admissibility of the testimony, and the two-way

video link preserved the reliability elements of confrontation. Id. at ¶ 22.
[Cite as State v. Oliver, 2018-Ohio-3667.]
        {¶21} Applying the two-part analysis to the facts in this case, we find that the trial

court did not err in granting the state’s motion to allow Sandra to testify via Skype, but

erred in permitting the video-link testimony of Susan. Nevertheless, the trial court’s

error pertaining to Susan was harmless because her testimony was merely cumulative to

Sandra’s testimony and the surveillance video shown during trial.

        {¶22} Regarding Sandra’s testimony, the trial court conducted a hearing prior to

trial. The record demonstrates that Sandra lived in Louisville, Kentucky and was caring

for James, who was currently undergoing dialysis following a liver transplant. James

was unable to travel to Ohio to testify. Therefore, under the fact-specific circumstances,

Sandra was unavailable to testify in person. Moreover, the testimony of Sandra was

admissible and relevant because she was an eyewitness and a named victim in one of the

assault charges.          Further, the Skype procedure satisfied the other elements of

confrontation. The record demonstrates that Sandra was under oath when she testified,

subject to cross-examination, and the jury and Oliver were able to observe her demeanor.

Accordingly, the circumstances in this case satisfy the Craig elements.

        {¶23} Oliver contends, however, that the video-link system often interrupted,

negating the reliability elements of confrontation. The trial transcript reveals that on

three occasions, the video-link-system “broke up.” During those instances, Oliver did

not object or note any issues during the testimony. In fact, Oliver did not conduct any

cross-examination of Sandra despite these video-link disruptions.          Moreover, during

these moments of disruption, the prosecutor acknowledged that the video-link broadcast
interrupted, and asked Sandra to repeat her answer or slow down when giving her

testimony. Finally, during these interruptions, Sandra was testifying about the physical

harm she and James suffered, and that she was fearful. The jury ultimately acquitted

Oliver of both counts of assault, where James and Sandra were the victims, and found

him guilty of lesser included offenses that did not include elements of harm or fear.

Therefore, any interruption in the video-linking system was not prejudicial to Oliver.

Accordingly, the trial court did not err in allowing Sandra to testify via Skype.

       {¶24} The trial court erred, however, in allowing Susan to testify via Skype

because, unlike Sandra, Susan was not unavailable. Although the state filed a pretrial

motion for Susan to testify, the trial court did not conduct a hearing or rule on the motion

prior to trial. The basis for the request to testify remotely was because Susan lived in

Jacksonville, Florida and had previously been in Ohio for six months caring for her

brother, James. Prior to Susan testifying, the state also stated that Susan had a job;

suggesting that she was unavailable. However, during her testimony, Susan testified that

she was not employed and had been in Cleveland previously for only five months. Based

on the case-specific circumstances, Susan was not unavailable to testify in person but

rather inconvenienced.     We find that this reasoning is an insufficient justification.

Although the reliability elements of confrontation were satisfied — she was under oath,

subject to cross-examination, and observable — the unavailability threshold was not met.

       {¶25} Nevertheless, the trial court’s error is harmless because allowing Susan to

testify via Skype was not prejudicial. Pursuant to Crim.R. 52(A), “any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.”

To find an error harmless, a reviewing court must be able to declare a belief that the error

was harmless beyond a reasonable doubt. State v. Lytle, 48 Ohio St.2d 391, 403, 358

N.E.2d 623 (1976). A reviewing court may overlook an error where the remaining

admissible evidence, standing alone, constitutes “overwhelming” proof of a defendant’s

guilt. State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983).

       {¶26} A review of the record demonstrates that Susan’s testimony was cumulative

to that of Sandra’s.      Both Sandra and Susan testified about the circumstances

surrounding Oliver’s actions in gaining access to their hotel room and the physical

altercation that ensued inside the hotel room. Moreover, the jury viewed surveillance

video showing the initial interactions between Oliver and Susan. Based on the testimony

given by Sandra, the trial court’s error in allowing Susan to testify remotely was harmless

beyond a reasonable doubt.        Sandra’s testimony alone overwhelmingly supported

Oliver’s convictions for burglary and unlawful restraint.

       {¶27} Accordingly, Oliver’s first assignment of error is overruled.

               II. Effective Assistance of Counsel — Motion to Suppress

       {¶28}     To establish ineffective assistance of counsel, a defendant must

demonstrate that (1) counsel’s performance fell below an objective standard of reasonable

representation and (2) he was prejudiced by that performance. Strickland v. Washington,

466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established

when the defendant demonstrates “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.          A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.”    Strickland at 694.   The failure to prove either prong of the Strickland

two-part test makes it unnecessary for a court to consider the other prong. State v.

Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697.

      {¶29} Trial counsel’s “failure to file a suppression motion does not constitute per

se ineffective assistance of counsel” since “[f]iling a motion to suppress is not without

risks.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305

(1986); Madrigal at 389. Courts must look to the facts of the case to determine whether

counsel made a tactical decision not to file such a motion. Madrigal at id. Further,

counsel is not ineffective for failing to file a motion to suppress if there was no

reasonable probability of success or there was no prejudice to the defendant. State v.

Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001).

      {¶30} In this case, Oliver contends in his second assignment of error, that his

counsel was ineffective for not filing a motion to suppress the drugs found during the

warrantless search of his hotel room.

      {¶31} “‘[T]he Fourth Amendment protection against unreasonable searches and

seizures is not limited to one’s home, but also extends to such places as hotel or motel

rooms.’” United States v. Bautista, 362 F.3d 584, 589, (9th Cir.2004), quoting United

States v. Cormier, 220 F.3d 1103, 1108-1109 (9th Cir.2000). A registered hotel guest
has a reasonable expectation of privacy in his room under the Fourth Amendment. See,

e.g., State v. Wright, 8th Dist. Cuyahoga No. 99531, 2013-Ohio-4473, ¶ 8.

       {¶32} However, once the hotel guest voluntarily abandons the room, his status is

lawfully terminated, or the rental period has expired, the guest no longer has a legitimate

expectation of privacy in the hotel room.       Bautista at 589, citing United States v.

Haddad, 558 F.2d 968, 975 (9th Cir.1977); State v. Miller, 77 Ohio App.3d 305, 602

N.E.2d 296 (8th Dist.1991). Whether a person’s status as a guest has been terminated or

a person has been evicted, is determined by whether the hotel staff took affirmative steps

to repossess the room. Wright at ¶ 9; State v. Nickelson, 7th Dist. Belmont No. 16 BE

0039, 2017-Ohio-7503.      Once the guest is evicted or his status has been lawfully

terminated, a hotel employee can consent to law enforcement’s entry into a hotel room

because the guest no longer has a reasonable expectation of privacy. Wright at id.

However, law enforcement must also have actual or implied knowledge that the guest has

been evicted from the hotel room before entering without a warrant. Wright at id., citing

Miller at 312-313, and United States v. Bass, 41 Fed.Appx.735 (6th Cir.2002).

       {¶33} Accordingly, a hotel guest who has not voluntarily abandoned his room or

exceeded his rental period maintains a reasonable expectation of privacy unless the hotel

staff takes affirmative steps to lawfully terminate his status as a guest or evicts him from

his room. Additionally, law enforcement wishing to conduct a warrantless search of a

hotel guest’s room must have actual or implied knowledge that the guest has been evicted

from his hotel room.
        {¶34} Oliver contends that based on this court’s decision in Wright, 8th Dist.

Cuyahoga No. 99531, 2013-Ohio-4473, there was a reasonable probability of success that

the trial court would have suppressed the drugs discovered in his room because the hotel

staff had not taken any affirmative steps to evict him, thus making the officers’

warrantless search unlawful. He further maintains that he was prejudiced because the

only evidence supporting his drug possession conviction was the drugs discovered in his

room.

        {¶35} In Wright, this court upheld the trial court’s decision suppressing evidence

discovered in Wright’s hotel room following a warrantless search. Wright was arrested

in the hotel lobby after police were called because he was disrupting other hotel guests

and vandalizing property in the common area of the hotel. When the police arrived, they

discovered Wright naked, sweating, and foaming at the mouth; Wright admitted that had

taken the drug PCP. Following Wright’s removal from the hotel, the hotel staff asked

police to check Wright’s room for damages, and an employee opened the room for the

officer. Once inside, an officer discovered drugs in an open dresser drawer. Wright

moved to suppress the drugs because the officers conducted a warrantless search.

        {¶36} This court held that absent evidence of any affirmative acts by the hotel staff

to divest the defendant of his status as an occupant and guest of the hotel, the defendant

maintained a reasonable expectation of privacy in his hotel room. Wright at ¶ 11-12.

Accordingly, the warrantless search was unlawful. Id.
       {¶37} We find Wright procedurally distinguishable. The appeal taken in Wright

was from the trial court’s granting of Wright’s suppression motion following a hearing.

Therefore, the record was fully developed regarding the search, including testimony

explaining the circumstances surrounding the search of the hotel room and whether the

search was lawful.

       {¶38} Unlike in Wright, the appeal in this case follows a jury trial. It is difficult

for a defendant to establish in hindsight on the basis of evidence contained in a trial

transcript, that a suppression motion would have been granted. State v. Morrison, 4th

Dist. Highland No. 03CA13, 2004-Ohio-5724. “[T]he record developed at trial is

generally inadequate to determine the validity of the suppression motion” because the

issues at trial are different than the issues at a suppression hearing. State v. Culbertson,

5th Dist. Stark No. 2000CA00129, 2000 Ohio App. LEXIS 5257,*13-14 (Nov. 13, 2000);

State v. Hohvart, 7th Dist. Mahoning No. 06 MA 43, 2007-Ohio-5349 (insufficient

evidence presented at trial to determine whether a motion to suppress would have been

successful); see also State v. Abass, 5th Dist. Stark No. 2016CA00200, 2017-Ohio-7034;

State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109; State v. Taylor, 4th

Dist. Washington No. 07CA11, 2008-Ohio-482.

       {¶39} Following the close of the state’s case and prior to making a Crim.R. 29

motion for acquittal, Oliver moved to suppress the drugs that were discovered as part of

the search of his hotel room. (Tr. 423.) Counsel indicated that she was unaware prior to

trial of the circumstances surrounding the search because there was no indication in
Officer Bayer’s report regarding how the police gained access to the room. However,

after Officer Bayer testified that he entered Oliver’s room at the request of the hotel

manager to remove any other occupants from the room, counsel then realized that the

search may have been unlawful, thus precipitating her mid-trial motion to suppress.

After hearing arguments from both sides, including the state’s objection that the motion

was untimely, the trial court denied the motion to suppress as untimely, but also because

“the testimony has been given on the subject.” (Tr. 426.) Arguably, trial counsel did in

fact move to suppress the evidence and the trial court considered the merits of the motion

when it denied the oral motion. If that were true, Oliver’s challenge on appeal would be

moot.

        {¶40} In this case, the record is undeveloped to determine if a suppression motion

would have likely been granted. The issue at trial was whether the state presented

sufficient evidence to prove that Oliver committed the offenses as indicted; not whether

the search of Oliver’s hotel room was lawful. Therefore, the state did not need to set

forth any testimony or evidence from the hotel manager regarding Oliver’s status as a

hotel guest to satisfy its burden of proving its case again Oliver. Accordingly, we cannot

say that the motion, if filed, would have likely been granted because the state presumably

would have elicited testimony from the hotel manager about Oliver’s status as a hotel

guest to justify the warrantless search.

        {¶41} Nevertheless, based on the record before us, we also find that no reasonable

probability exists that a motion to suppress would likely have been granted. Officer
Bayer testified that he was asked to check Oliver’s hotel room “and if there was anyone

else in the room [the hotel manager] wanted them removed.” (Tr. 410.) Officer Bayer

also testified that he wanted to check the room to see if “there were potentially any more

victims.” (Tr. at id.) According to Officer Bayer, the on-duty manager opened Oliver’s

room and allowed him inside. It is reasonable to infer that because the hotel manager

had asked that “any other occupants be removed,” Oliver, after allegedly assaulting other

hotel guests, was also evicted and his guest-status was revoked. Officer Bayer testified

that in performing a protective sweep of the hotel room, the drugs were in plain view on

the bathroom sink.    Accordingly, the trial testimony does not support a reasonable

possibility that a motion to suppress would have been successful.

      {¶42} Finally, even if the court granted the motion, sufficient evidence was

presented to support Oliver’s drug possession charge. As discussed later in our analysis

of the third assignment of error, Oliver admitted to using PCP. This admission alone is

sufficient to prove drug possession pursuant to R.C. 2925.11(A); the actual discovery of

the drugs in Oliver’s hotel room becomes unnecessary.

      {¶43} Accordingly, we cannot say that counsel was ineffective for failing to file a

motion to suppress. The assignment of error is overruled.

                           III. Sufficiency of the Evidence

      {¶44} In his third assignment of error, Oliver contends that the trial court erred in

denying his Crim.R. 29 motion for judgment of acquittal.
[Cite as State v. Oliver, 2018-Ohio-3667.]
        {¶45} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543,

747 N.E.2d 765 (2001). “‘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.’” State v. Walker,

150 Ohio St.3d 409, 2016-Ohio-829, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus

        {¶46} Oliver first contends that the trial court erred in denying his Crim.R. 29

motion on the aggravated burglary and abduction charges because no evidence was

presented to prove that James, the named victim, suffered physical harm. When an

appellate court reviews a Crim.R. 29 motion, the motion should be reviewed in the

context of whether the evidence supported the offenses for which the defendant was

convicted. State v. Schellentrager, 8th Dist. Cuyahoga No. 105652, 2017-Ohio-9275, ¶

11, citing State v. Carney, 10th Dist. Franklin No. 00AP-502, 2000 Ohio App. LEXIS

5807, * 4 (Dec. 14, 2000) (the conviction for the lesser-included is the reviewable charge

on appeal). Accordingly, we will review the sufficiency of the evidence for Oliver’s

convictions on the lesser included offenses of burglary and unlawful restraint.
[Cite as State v. Oliver, 2018-Ohio-3667.]
        {¶47} Oliver was convicted of burglary, commonly referred to as “trespass in a

habitation,” in violation of R.C. 2911.12 (B), which provides that “[n]o person by force,

stealth, or deception, shall trespass in a permanent or temporary habitation of any person

when any person * * * is present or likely to be present.” Sandra testified that they had

been living at the Staybridge Suites since December 2016 while James received and

recovered from a liver transplant. She further stated that Oliver chased Susan down the

hall, causing her to retreat inside their hotel room. However, they could not get the door

closed before Oliver forced himself inside their room. Accordingly, the evidence was

sufficient to support his conviction for trespass in a habitation.

        {¶48} Pursuant to R.C. 2905.03(A), regarding unlawful restraint, “[n]o person,

without privilege to do so, shall knowingly restrain another of the other person’s liberty.”

The named victim for this count was James. Sandra testified that Oliver grabbed James’s

arm and began pushing him. Oliver continued holding James’s arm despite Sandra and

Susan’s attempts to pry him off James. He continued holding onto James from the hotel

room, into the hallway, and then into the common area and lobby of the hotel. Sandra

and Susan were only able to break James free from Oliver’s grasp after the police were

called, and Ivan intervened and assisted. Accordingly, the evidence was sufficient to

support Oliver’s conviction for unlawful restraint.

        {¶49} Oliver was also convicted of drug possession in violation of R.C.

2925.11(A), which prohibits a person from knowingly obtaining, possessing, or using a

controlled substance or a controlled substance analog. Oliver admitted that his friend
offered him drugs in the parking lot of the Staybridge Suites, and that although he was not

familiar with the drug, he smoked PCP with his friend in the car. Accordingly, Oliver’s

admission that he was using drugs with his friend is sufficient to support his conviction

for drug possession.

          {¶50} Additionally, when questioned about the drugs in his hotel room, Oliver

stated that he did not recall bringing the drugs into his room but that they were not there

when he initially arrived at the hotel and he did not remember anyone else bringing the

drugs into his room.         Accordingly, there was sufficient evidence that the drugs

discovered in his hotel room belonged to him.

          {¶51} Pursuant to R.C. 2921.33(A), regarding resisting arrest, “[n]o person,

recklessly or by force, shall resist or interfere with a lawful arrest of the person.”

Officers Lord, Rekhter, and Bayer each testified that Oliver repeatedly refused to comply

with their commands.        The officers attempted to place handcuffs on Oliver, but he

resisted by grabbing at the loose end of the handcuff and became increasingly aggressive.

 The jury was able to observe and hear the interactions between the officers and Oliver

from body camera video, including the officers’ repeated instructions to “stop resisting.”

Accordingly, there was sufficient evidence to support Oliver’s conviction for resisting

arrest.

          {¶52} Oliver’s third assignment of error is overruled.
[Cite as State v. Oliver, 2018-Ohio-3667.]
                               IV. Manifest Weight of the Evidence

        {¶53} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12.            A reviewing court “weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines 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. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A conviction

should be reversed as against the manifest weight of the evidence only in the most

“exceptional case in which the evidence weighs heavily against the conviction.” Id.

        {¶54} In this case, the jury’s verdict demonstrates that it rendered a decision based

on the evidence presented.             The jury was able to view the video surveillance and

compare that to the testimony given at trial.          They were able to witness the initial

interaction between Oliver and Susan, and then observe Oliver holding onto James in the

hotel lobby. Oliver admitted that he used PCP with his friend. Additionally, the body

camera videos showed the interaction between Oliver and the officers, including the

officers’ repeated commands to stop resisting. This case is not the exceptional case in

which the evidence weighs heavily against the convictions. Accordingly, Oliver’s final

assignment of error is overruled.
[Cite as State v. Oliver, 2018-Ohio-3667.]
        {¶55} Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY
