[Cite as State v. Stafford, 2019-Ohio-3628.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J
         Plaintiff-Appellee                      Hon. Craig R. Baldwin, J.
                                                 Hon. Earle E. Wise, Jr., J.
 -vs-
                                                 Case No. 18-COA-036
 RAYMOND STAFFORD

        Defendant-Appellant                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Ashland County Court of
                                                 Common Pleas, Case No. 17-CRI-178

 JUDGMENT:                                       Affirmed

 DATE OF JUDGMENT ENTRY:                         September 5, 2019

 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 CHRISTOPHER TUNNELL                             MATTHEW J. MALONE
 Ashland County Prosecutor                       Law Offices of Mathew J. Malone, LLC
                                                 10 East Main Street
 VICTOR R. PEREZ                                 Ashland, Ohio 44805
 COLE F. OBERLI
 Assistant Prosecuting Attorney’s
 110 Cottage Street
 Ashland, Ohio 44805
Ashland County, Case No. 18-COA-036                                                      2

Hoffman, P.J.
       {¶1}   Defendant-appellant Raymond Stafford appeals his conviction and

sentence entered by the Ashland County Court of Common Pleas, on one count of

aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third

degree, following a jury trial. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On December 15, 2017, the Ashland County Grand Jury indicted Appellant

on the aforementioned charge. The Indictment arose out of a fatal two car accident which

resulted in the death of Ernie Whitesel. The November 28, 2016 accident occurred when

Appellant, who was driving a Mini Cooper, tried to pass Whitesel’s Dodge Avenger.

Appellant appeared before the trial court for arraignment on December 21, 2017, and

entered a plea of not guilty to the Indictment.

       {¶3}   On February 13, and April 11, 2018, respectively Appellant filed motions

requesting expert funds for an accident reconstructionist and a pharmacologist. Via

Judgment Entries filed February 15, and May 25, 2018, the trial court authorized funds

for both experts. The state filed a motion in limine, requesting the trial court prohibit

Appellant from introducing any testimony and/or evidence regarding the presence of

methamphetamine in Whitesel’s system at the time of his death. Appellant filed a timely

response, arguing the presence of illegal drugs in Whitesel’s system would support his

theory Whitesel caused the accident. The trial court conducted a hearing on the State’s

motion on September 18, 2018.

       {¶4}   At the hearing, Trooper Ryan Thomas with the Ohio State Highway Patrol’s

Crash Reconstruction Unit testified he was called to investigate a possibly fatal accident

near the intersection of Route 58 and Township Road 350 in Ashland County. Trooper
Ashland County, Case No. 18-COA-036                                                       3


Thomas arrived at the scene and learned the accident resulted in a fatality. Based upon

his investigation and reconstruction work, Trooper Thomas concluded there was no

evidence Whitesel’s Avenger crossed into the southbound lane prior to or at the time of

the crash. Trooper Thomas also found no evidence to establish Whitesel’s use of

methamphetamines was the sole cause of the crash.

       {¶5}   The trial court granted the state’s motion in limine, prohibiting the

presentation of any evidence Whitesel had methamphetamines in his system. The trial

court found, “Whether the methamphetamine caused the vehicle to move in that manner

is irrelevant.” Tr. Sept. 18, 2018 Hearing at 52. The trial court further found the evidence

of methamphetamine was not needed to assert the defense theory of the accident or to

refute the state’s theory. Id. The trial court added the evidence was “very prejudicial”

and had “no probative value about this accident.” Id. The trial court determined no one

could “say with any degree of certainty, other than to speculate or opine, that [Whitesel]

having methamphetamine in his system caused him to operate the vehicle in that

manner.” Id. The trial court advised Appellant he could proffer the testimony of his two

expert witnesses regarding Whitesel’s methamphetamine use at trial, but outside the

presence of the jury.

       {¶6}   The matter proceeded to trial on September 25, 2018. The state called

eight witnesses, including the first responders, the medical examiner who conducted the

autopsy of Whitesel, and three accident reconstructionists, who were recognized as

experts by the court.

       {¶7}   Lesley Handley, the assistant chief of the Sullivan Volunteer Fire

Department, testified he was eating breakfast early in the morning of November 28, 2016,
Ashland County, Case No. 18-COA-036                                                     4


when he heard a rumbling sound. Handley and his wife looked out their front door and

observed a car in a ditch off the west side of State Route 58. Handley immediately

entered his car and drove to the intersection. When he arrived, he noticed a second

vehicle on the south side of Township Road 350. The driver of the first vehicle, who was

subsequently identified as Appellant, was outside his vehicle on his cell phone. Handley

walked to the second vehicle, which was upside down in a field, and found no one inside.

A passerby and Hadley began to search for the driver. The passerby found the driver,

who was later identified as Whitesel, across Township Road 350. Handley commenced

CPR, but did not detect a pulse and Whitesel was not breathing. When EMT arrived, they

started CPR with a LUCAS device. Prior to leaving the scene, Handley spoke with

Appellant who explained Whitesel “came up behind him really close and passed him and

slowed down * * *aggravating him, kind of antagonizing.” Trial Transcript at 32.

      {¶8}   When Deputy Curtis Hall of the Ashland County Sheriff’s Department

arrived at the scene, he observed the skid marks and immediately recognized the gravity

of the situation. He turned his cruiser to block the roadway. The deputy approached the

emergency area of the scene and immediately recognized Whitesel as he knew the

victim’s family. Deputy Hall recalled Whitesel was unresponsive to attempts to resuscitate

him. The deputy described Whitesel as lifeless.

      {¶9}   EMS Chief Keith Rowe with Sullivan Fire and Rescue arrived at the accident

scene at approximately 5:30 a.m. He observed Whitesel on the north side of Township

Road 350. CPR was in progress. Rowe stated he confirmed the Life Flight helicopter

was 12-15 minutes away and determined he needed to get Whitesel to the closest

definitive care, Lodi Hospital.   Rowe noted Whitesel did not respond to any of the
Ashland County, Case No. 18-COA-036                                                     5


treatment provided by emergency personnel. Whitesel was pronounced dead at the

hospital.

       {¶10} Trooper Paul Green of the Ohio State Highway Patrol took a statement from

Appellant at the scene. Appellant advised Trooper Green he was driving north on State

Route 58 in Sullivan, Ohio, when the driver behind him approached with bright lights on.

Appellant let the driver go around him, but once the driver passed, he slowed down.

Appellant attempted to pass the vehicle, however, the driver sped up and clipped

Appellant’s vehicle on the right side when the back side of the driver’s vehicle swung.

Trooper Green did not observe any indication Appellant was impaired. Trooper Green

testified about the damage to each of the vehicles and concluded the evidence did not

corroborate Appellant’s statement Whitesel’s Avenger back swung and struck Appellant’s

Mini Cooper.

       {¶11} Trooper Ryan Thomas, who testified at the hearing on the state’s motion in

limine, also testified at trial. Trooper Thomas used data gathered at the scene, including

gashes, yaw marks, skid marks, damage to both vehicles, and electronic measurements

as well as the information collected from the event data recorder of Whitesel’s Avenger

to determine the cause of the crash. Trooper Thomas concluded Appellant’s vehicle

struck the Avenger on the left side and caused the Avenger to travel off the roadway. The

trooper noted Appellant’s vehicle was traveling between 72 and 77 mph following the

impact. Whitesel’s vehicle was traveling 76 mph, post impact. Trooper Thomas stated

the physical evidence did not corroborate Appellant’s explanation of how the accident

occurred. He added the Avenger has front wheel drive and it is not possible for the back

end of the vehicle to break lose when it is accelerating. Trooper Thomas stated the
Ashland County, Case No. 18-COA-036                                                      6


accident occurred in the northbound lane. He concluded Appellant’s Mini Cooper veered

to the right, traveling from the southbound lane to the northbound lane, striking the

Avenger as he attempted to pass. As a result, the Avenger traveled off the right side of

the roadway.

       {¶12} Lieutenant Christopher Kinn of the Ohio State Highway Patrol analyzed the

data downloaded from the event data recorder retrieved from Whitesel’s Avenger. Lt.

Kinn explained how the data is analyzed and the information acquired therefrom. Based

upon his analysis of the data, Lt. Kinn concluded the Avenger which was traveling at a

peak speed of 100 mph moments before the accident, lost lateral stability after being

struck by Appellant’s vehicle, then traveled off the road and bolted.

       {¶13} Lt. Kinn reviewed the statement Appellant gave to Trooper Green and found

the statement was not consistent with his findings or with his knowledge, training, and

experience. The lieutenant found no evidence the Avenger traveled into the southbound

lane. He added a Dodge Avenger is front wheel drive and cannot “fishtail” as Appellant

indicated in his statement. The data also did not support Appellant’s claim he was driving

60 mph as he was attempting to pass the Avenger. According to Lt. Kinn, if Appellant

was traveling at 60 mph, he would be behind the Avenger, which was traveling at 100

mph, not next to it.

       {¶14} James     Crawford,   a   crash   reconstructionist   with   Intertech   Crash

Reconstruction Services, Grafton, Ohio, stated, on October 5, 2017, he was asked to

review Trooper Thomas’ crash reconstruction, and validate and verify the trooper’s

findings. Crawford testified 4.3 seconds prior to the Avenger ending up off the road and

in the ditch, the vehicle was traveling 99 mph. Crawford noted the Mini Cooper would
Ashland County, Case No. 18-COA-036                                                    7


have to be traveling at least that speed, if not more, in order to pass the Avenger. When

the vehicles made contact, the Avenger was traveling at 83 mph and the Mini Cooper was

traveling at least at a commensurate speed. Crawford added there was no physical

evidence the Avenger crossed into the southbound lane.           The impact between the

vehicles occurred in the northbound lane.        Based upon the yaw marks, Crawford

determined the Mini Cooper bounced off the Avenger.

       {¶15} Crawford reviewed the statement Appellant gave at the scene and found it

to be self-serving. Crawford noted Appellant claimed he was traveling at a much slower

speed, but the physical evidence contradicted the claim. Appellant stated the back end

of the Avenger swung out, which Crawford explained was not possible as an Avenger is

a front wheel drive vehicle.     Further, the damage on the vehicles did not support

Appellant’s statement the Avenger fishtailed. Appellant also indicated the Avenger was

accelerating prior to the collision. However, the data from the event data recorder

revealed the Avenger was decelerating just before impact and Whitesel had been braking

at the time.

       {¶16} Crawford concluded the crash was caused by Appellant’s attempting to

pass the Avenger at a high rate of speed on a two lane road, making a sharp turn of the

steering wheel, and colliding with the Avenger. Crawford opined one vehicle passing

another on a two lane road in the middle of Amish country during the early morning hours

in late November, when it is still dark, was not a safe thing to do.

       {¶17} Dr. Dan Galita with the Cuyahoga Medical Examiner’s Office performed the

autopsy on Whitesel. Dr. Galita testified Whitesel sustained various abrasions as well as

a large laceration of the scalp with avulsion, meaning the scalp was completely detached
Ashland County, Case No. 18-COA-036                                                         8


from the skull. The medical examiner explained the laceration with avulsion was caused

by “a very powerful blunt force to the area which split the skin and removed completely

the scalp.” Tr. At 125. Whitesel also sustained substantial internal injuries including a

cerebral intra-ventricular hemorrhage, a fractured sternum, broken ribs, punctured lungs,

laceration of the interatrial septum of the heart, a ruptured diaphragm, and lacerations of

the liver and spleen. Dr. Galita concluded all of Whitesel’s injuries were caused by severe

blunt force trauma, and a number of the injuries alone were fatal.

       {¶18} Appellant testified he left for work at approximately 4:50 a.m. on November

28, 2016. Appellant was stopped on Route 58 North when he observed a vehicle with its

high beams illuminated approaching at a high rate of speed. The driver of the vehicle,

who was subsequently identified as Whitesel, passed Appellant, moved back into the

northbound lane, and slowed his vehicle. Initially, Appellant believed Whitesel was

slowing down to turn into a driveway, but when Whitesel did not turn, Appellant moved

into the southbound lane to pass Whitesel, who then started to accelerate. Appellant

increased his speed to make the pass, but Whitesel continued to increase his speed.

Appellant saw the back end of Whitesel’s vehicle “drop”, which caused it to travel into the

southbound lane and strike the front end of Appellant’s Mini Cooper. Appellant testified

he informed Trooper Green he was traveling 60 mph as he initiated the pass, but

increased his speed as Whitesel accelerated. Appellant maintained he could not have

been traveling 90 mph, as the experts testified, because his Mini Cooper was in 4th gear

which is between 70-75 mph, and he did not change gears.

       {¶19} In order to preserve the record for appeal relative to its grant of the state’s

motion in limine, the trial court permitted Appellant to proffer the testimony of two experts,
Ashland County, Case No. 18-COA-036                                                      9


Szabolcs Sofalvi, a forensic scientist with the Cuyahoga County Medical Examiner’s

Office, and of Dr. Jon Sprague, Director of the Ohio Attorney General Center of Forensic

Science and BCI, who was recognized as an expert in pharmacology.

       {¶20} Sofalvi testified he performed toxicology testing on Whitesel and prepared

a report based upon the results thereof.           The testing revealed Whitesel had

methamphetamine and amphetamine in his system at the time of the crash. Sofalvi noted

Whitesel’s methamphetamine level was 154 nanograms per milliliter of whole blood,

which was above the legal limit for operating a motor vehicle of 100 nanograms per

milliliter. Sofalvi explained methamphetamine is a stimulant and can cause aggressive

or erratic driving. On cross-examination, Sofalvi acknowledged a toxicology report could

not establish how an individual was driving or what caused an accident.

       {¶21} Dr. Sprague testified he reviewed Sofalvi’s toxicology report on Whitesel as

well as published works on the subject of the effects of methamphetamine on driving. He

noted studies report drivers under the influence of methamphetamine behave

aggressively or in a paranoid manner. Dr. Sprague concluded, because the level of

methamphetamine found in Whitesel’s system was over the legal limit, the

methamphetamine contributed to the accident.        On cross-examination, Dr. Sprague

acknowledged he did not review the accident report or the reconstructionists’ report. Dr.

Sprague further conceded he did not know if Whitesel was driving erratically on the day

of the accident.

       {¶22} Charles Veppert, an accident reconstructionist for Valley Technical

Services, testified on Appellant’s behalf. Veppert reviewed all of the information complied

by the police and the state’s experts, including the crash reports, the reconstruction
Ashland County, Case No. 18-COA-036                                                      10


reports, the information from the event data recorder of Whitesel’s Avenger, photographs

of the vehicles and the accident scene, and the scale diagram and mapping of the scene.

Although Veppert took issue with the reconstruction reports as said reports failed to show

the entirety of the travel of the vehicles prior to the onset of the yaw marks and failed to

provide an explanation of Appellant’s statement of the events, Veppert was in agreement

with the determinations made by Trooper Thomas and Crawford relative to the period

between the onset of the yaw marks caused by Appellant’s vehicle to the final rest of both

vehicles. Veppert concluded the yaw marks caused by Appellant’s vehicle were not steer-

induced, but rather caused by an outside force impacting the vehicle. Veppert noted

Appellant’s claim Whitesel made the first contact was just as likely as Crawford’s

determination Appellant swerved to the right, initiating the first contact.

       {¶23} After hearing all the evidence and deliberating, the jury found Appellant

guilty as charged. The trial court scheduled a sentencing hearing for October 29, 2018,

and ordered a pre-sentence investigation. The trial court sentenced Appellant to a period

of incarceration of 18 months with credit for time served; suspended Appellant’s license

for a period of five years; and ordered him to pay restitution to Whitesel’s family in the

amount of $13,300.25, as well as court costs. The trial court subsequently stayed

Appellant’s sentence pending this Appeal.

       {¶24} It is from his conviction and sentence Appellant appeals, raising the

following assignments of error:



              I. APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT

       RIGHTS WERE VIOLATED WHEN THE TRIAL COURT PROHIBITED
Ashland County, Case No. 18-COA-036                                                      11


       APPELLANT FROM INTRODUCING RELEVANT AND PROBATIVE

       EVIDENCE        RELATED        TO     THE      ILLEGAL       LEVELS       OF

       METHAMPHETAMINE AND AMPHETAMINE IN THE DECEDENT’S

       SYSTEM AT THE TIME OF THE ALLEGED OFFENSE.

              II. APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT

       RIGHTS WERE VIOLATED WHEN HIS TRIAL ATTORNEY RENDERED

       INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO

       TESTIMONY REGARDING THE ULTIMATE ISSUE OF RECKLESSNESS.



                                                I.

       {¶25} In his first assignment of error, Appellant contends the trial court violated

his Sixth and Fourteenth Amendment Rights by prohibiting Appellant from introducing

relevant and probative evidence related to the illegal levels of methamphetamine and

amphetamine found in Whitesel’s system at the time of the crash.

       {¶26} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987).

As a general rule, all relevant evidence is admissible. Evid. R. 402. However, even if

relevant, evidence must be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury. Evid. R.

403(A).

       {¶27} Appellant was convicted of aggravated vehicular homicide, in violation of

R.C. 2903.06(A)(2)(a), which provides:
Ashland County, Case No. 18-COA-036                                                     12


             (A) No person, while operating or participating in the operation of a

      motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,

      shall cause the death of another or the unlawful termination of another's

      pregnancy in any of the following ways:

             ***

             (2) In one of the following ways:

             (a) Recklessly.



      {¶28} Appellant explains, because “[t]he primary dispute at trial was whether

Whitesel came into [his] lane and caused the accident or if [he] came into Whitesel’s lane

and caused the accident”, his “proffered experts would have provided relevant and

probative testimony to support [his] position that it was Whitesel who came into [his] lane

and made the contact which caused the accident.” Brief of Appellant at 6. Appellant adds

his experts indicated methamphetamine causes aggressive driving and erratic behavior

and Whitesel’s “road rage” was consistent with a driver under the influence of

methamphetamine. Appellant submits the cause of the accident was also attributed to

Whitesel’s   ‘road   rage’.”   Id.    Appellant   concludes    evidence    of   Whitesel’s

methamphetamine use was relevant as “it tends to show that a fact of consequence –

which vehicle caused the accident – more or less probable than it would be without the

evidence.” Id.

      {¶29} The definition of “cause” in criminal cases is identical to the definition of

“proximate cause” in civil cases. State v. Chambers, 53 Ohio App.2d 266, 373 N.E.2d

266(9th Dist. 1977); State v. Bendycki, 8th Dist. Cuyahoga No. 42813, 1981 WL 4957;
Ashland County, Case No. 18-COA-036                                                         13

State v. Cruse, 1st Dist. Hamilton No. C–811031, 1982 WL 8765. “Where the defendant's

conduct was only one of multiple causes that led to the legal injury, the test for causation

is whether (1) the defendant's conduct was a “substantial factor” in bringing about the

harm, and (2) there is no other rule of law that relieves the defendant of liability.” State v.

Filchock, 166 Ohio App.3d 611, 2006–Ohio–2242, ¶ 77 (11th Dist.).

       {¶30} At trial, Appellant recalled the statement he gave Trooper Green

immediately following the crash. Appellant told the trooper, as he attempted to pass the

Avenger, Whitesel sped up and clipped his Mini Cooper on the right side when the back

end of the Avenger swung out. Appellant proceeded to describe how he attempted to

pass Whitesel’s Avenger, but as he sped up to do so, Whitesel accelerated more which

ultimately caused the back end of the Avenger to swing out and strike the front end of

Appellant’s Mini Cooper.

       {¶31} The testimony of the accident reconstructionists contradicted Appellant’s

description of how the accident occurred and established Appellant’s actions caused the

accident. Trooper Thomas testified how he used the data gathered at the scene, including

gashes, yaw marks, skid marks, the damage to both vehicles, and electronic

measurements as well as the information collected from the event data recorder of the

Avenger to determine how the accident occurred. Trooper Thomas explained to the jury

how that evidence supported his conclusion. James Crawford reviewed Trooper Thomas’

crash reconstruction, and validated and verified the trooper’s findings. Crawford testified,

when the vehicles made contact, the Avenger was traveling at 83 mph and the Mini

Cooper was traveling at least at a commensurate speed. Crawford stated there was no

physical evidence the Avenger crossed into the southbound lane and the impact occurred
Ashland County, Case No. 18-COA-036                                                      14


in the northbound lane. Crawford noted, based upon the yaw marks, the Mini Cooper

bounced off the Avenger. Further, the data from the event data recorder revealed the

Avenger was decelerating just before impact and Whitesel had been braking at the time.

       {¶32} A defendant cannot be relieved of criminal liability merely because factors

other than his own actions contributed to the death, unless the other factors were the sole

proximate cause of death.      Id. at ¶ 78.   More specifically, the alleged contributory

negligence of the decedent cannot be used as a defense in an aggravated vehicular

homicide prosecution unless it was the sole proximate cause of the accident. Id.; State

v. Vansickle, 5th Dist. Licking No. CA–3682, 1992 WL 61579. As long as the state can

prove the defendant's actions were a cause of the death, it is irrelevant whether there

were any other contributory causes. State v. Ward, 2d Dist. Montgomery No. 18211, 2001

WL 220244. In other words, a defendant's criminal act does not have to be the sole cause

of harm. State v. Emerson, 2d Dist. Darke, 2016-Ohio-8509, 78 N.E.3d 1199, ¶ 24.

       {¶33} Although Whitesel's being under the influence of methamphetamine may

have contributed to the fatal accident, such was not the sole proximate cause of the

accident. Appellant’s conduct was a “substantial factor” in bringing about the harm, and

there is no other rule of law that relieves him of liability. The physical findings do not

support Appellant’s assertion Whitesel’s vehicle initiated contact with Appellant’s vehicle

in the southbound lane; but rather supports the State’s assertion Appellant initiated

contact with Whitesel’s vehicle in the northbound lane and caused the fatal accident.

Accordingly, we find the trial court's decision to prohibit the testimony of Sofalvi and Dr.

Sprague was not an abuse of discretion.

       {¶34} Appellant’s first assignment of error is overruled.
Ashland County, Case No. 18-COA-036                                                        15


                                              II.
       {¶35} In his second assignment of error, Appellant asserts his trial counsel

rendered ineffective assistance by failing to object to statements made by the state’s

witnesses going to an ultimate issue for the jury, to wit: whether Appellant acted

recklessly.

       {¶36} To prevail on a claim of ineffective assistance of counsel, a defendant “must

satisfy a two-prong test.” State v. Kennard, 10th Dist. No. 15AP-766, 2016-Ohio-2811, ¶

14, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Under the first prong, a defendant must “demonstrate that his trial counsel's

performance was deficient.” Id. If a defendant “can show deficient performance, he must

next demonstrate that he was prejudiced by the deficient performance.” Id. A defendant's

“failure to make either showing defeats a claim of ineffective assistance of counsel.” Id.,

citing State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), quoting Strickland

at 697, 104 S.Ct. 2052.

       {¶37} In order to demonstrate deficient performance by counsel, a defendant

“must show that his counsel committed errors which were so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

at ¶15 (Quotations omitted). Further, a defendant “must overcome the strong presumption

that defense counsel's conduct falls within a wide range of reasonable professional

assistance.” Id., citing Strickland at 689. In order to show prejudice, a defendant “must

establish there is a reasonable probability that, but for his counsel's unprofessional errors,

the result of the trial would have been different.” Id., citing Strickland at 689.

       {¶38} Appellant points to a number of times during trial when “witnesses were

permitted to give testimony, without objection, on whether [Appellant] acted recklessly.”
Ashland County, Case No. 18-COA-036                                                        16


Brief of Appellant at 8. Those instances are as follows. Trooper Green testified Appellant

committed an improper lane change. Trial Tr. at 115. Trooper Thomas stated traveling 70

mph in a 55 mph zone in order to pass another vehicle would be a driving infraction. Id.

at 187. Lt. Kim testified passing another vehicle at Appellant’s speed on a two lane road

while dark was not safe.      Id. at 217.     Accident reconstructionist James Crawford

described Appellant’s actions as “[c]ertainly not a safe thing to do.” Id. at 246. Appellant’s

accident reconstructionist, Charles Veppert, concluded, “if [Appellant] never tried to pass

[Whitesel], the crash would not have happened. Id. at 373.

       {¶39} The failure to object to error alone ordinarily is not enough to sustain a claim

of ineffective assistance of counsel. State v. Stanford, 10th Dist. No. 16AP-873, 2018-

Ohio-3961, ¶ 27, citing State v. Holloway, 38 Ohio St.3d 239 (1988). Trial strategy and

even debatable trial tactics do not establish ineffective assistance of counsel. State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. A reviewing court must be “highly

deferential to counsel's performance and will not second-guess trial strategy decisions.”

State v. Tibbetts, 92 Ohio St.3d 146, 166-67 (2001). In evaluating a claim of ineffective

assistance of counsel based on counsel's failure to object, we consider whether such an

objection would have been meritorious. State v. Cashin, 10th Dist. No. 09AP-367, 2009-

Ohio-6419, ¶ 12.

       {¶40} We find the statements about which Appellant complains do not speak to

Appellant’s mental state. The witnesses were merely commenting upon Appellant’s

actions and never opined Appellant acted “recklessly”. Thus, we find any objection would

not have been meritorious. Assuming, arguendo, trial counsel should have objected to
Ashland County, Case No. 18-COA-036                                                        17


this testimony, we find Appellant is unable to establish there was a reasonable probability

that, but for the failure to object, the outcome of the trial would have been different.

       {¶41} Furthermore, “[t]estimony in the form of an opinion or inference otherwise

admissible is not objectionable solely because it embraces an ultimate issue to be

decided by the trier of fact.” Evid. R. 704.

       {¶42} Appellant’s second assignment of error is overruled.

       {¶43} The judgment of the Ashland County Court of Common Pleas is affirmed.




By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
