[Cite as State v. Black,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NOS. 26986 and 26991 : v. : T.C. NOS. 15CRB6924 and : 15TRD10946 DION BLACK : : (Criminal appeal from Defendant-Appellant : Municipal Court) :

...........

OPINION

Rendered on the ___23rd___ day of _____November_____, 2016.

...........

MATTHEW O. KORTJOHN, Atty. Reg. No. 0083743, Assistant City Prosecutor, 335 W. Third Street, Rm. 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

KIRIAKOS G. KORDALIS, Atty. Reg. No. 0089697, 130 W. Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

DONOVAN, P.J.

{¶ 1} Defendant-appellant Dion Black appeals his conviction and sentence in Case

No. 15 CRB 6924 for one count of failure to comply, in violation of R.C. 2921.331(B), a

misdemeanor of the first degree and one count of obstructing official business, in violation

of R.C. 2921.21(A), a misdemeanor of the second degree. Black appeals his conviction -2-

and sentence in Case No. 15 TRD 10946 for one count of no operator’s license, in

violation of R.C. 4510.12(A), a misdemeanor of the first degree; and one count of failure

to stop prior to driving on a sidewalk, in violation of R.C. 4511.431, a minor misdemeanor.

Black filed a timely notice of appeal with this Court on January 14, 2016, in Case Nos. 15

CRB 6924 and 15 TRD 10946.

{¶ 2} On August 26, 2015, Montgomery County Sheriff’s Deputy Brian

Shiverdecker was patrolling in the vicinity of 4567 Germantown Pike. Deputy

Shiverdecker was wearing the uniform of the day and driving a marked police cruiser.

On that day, Deputy Shiverdecker was working as a member of the “C.O.P. Unit,” a

specialized road patrol unit focused on narcotics complaints. At approximately 1:00

p.m., Deputy Shiverdecker observed a gold-colored Chevrolet Suburban fail to stop

before exiting onto the roadway from Whitney Young Estate Apartments located on

Liscum Drive. After following the Suburban for a short distance, Deputy Shiverdecker

activated his overhead cruiser light in order to effectuate a stop of the vehicle. Deputy

Shiverdecker testified that he did not activate his cruiser’s siren during the attempted stop

of the vehicle.

{¶ 3} At this point, Deputy Shiverdecker observed the driver of the Suburban drive

the vehicle through the parking lot of a nearby convenience store, stop the vehicle briefly,

and then pull out onto Germantown Street. Deputy Shiverdecker testified that he could

not see the driver of the vehicle during the attempted stop, and the driver never pulled

over. Rather, the driver of the Suburban drove south on Germantown Street at a high

rate of speed. Deputy Shiverdecker testified that he radioed his partner, Deputy Herbert

Thornton, who was only a short distance away in order to alert him that the driver of the -3-

Suburban was fleeing in his direction. At the time he received the alert from Deputy

Shiverdecker, Deputy Thornton was close enough to observe the Suburban pull onto

Germantown Street and begin driving in his direction.

{¶ 4} Deputy Thornton testified that he brought his cruiser to a complete stop so

that he could better observe the driver of the Suburban as it passed his cruiser. As the

Suburban passed him, Deputy Thornton identified Black as the driver of the vehicle.

Deputy Thornton testified that he was able to observe Black driving the vehicle through

the front windshield and driver’s side window as the Suburban passed him. Deputy

Thornton also testified that there was another individual sitting in the front passenger seat

of the vehicle. Deputy Thornton further testified that windows on the Suburban were not

tinted, thereby allowing him to easily see into the vehicle.

{¶ 5} After Black passed him, Deputy Thornton activated his overhead lights and

began following the vehicle. Deputy Thornton testified that he observed Black turn onto

Belcourt Street and bring the Suburban to a complete stop. At that point, Black and the

unidentified passenger exited the vehicle and fled in different directions. Rather than

chase after Black or the passenger, Deputy Thornton investigated the Suburban in order

to ascertain whether there was anyone else in the vehicle. When he failed to locate any

other passengers, Deputy Thornton testified that he began taking an inventory search of

the interior of the vehicle. During his search, Deputy Thornton discovered a State of

Ohio birth certificate with the name “Dion Eugene Black,” date of birth of June, 1981, lying

on the driver’s side dashboard inside the Suburban.

{¶ 6} Deputy Thornton testified that he ran the information from the birth certificate

through Justiceweb in the computer in his police cruiser. Justiceweb is a website that -4-

lists dates of arrest, police stops, and various other court case information including

booking photos for recent arrests. After looking at one of Black’s recent mugshots,

Deputy Thornton realized that it was the same individual he had just observed as being

the driver of the Suburban. Neither Black nor his passenger in the Suburban were

apprehended that day.

{¶ 7} Thereafter, on October 14, 2015, Black was charged by complaint in Case

No. 15 CRB 6924 with one count of failure to comply and one count of obstructing official

business. On October 22, 2015, Black was issued a citation in Case No. 15 TRD 10946

for one count of no operator’s license and one count of failure to stop prior to driving on

a sidewalk. Black failed to appear for his arraignment on October 26, 2015, and the trial

court issued a warrant for his arrest. Black was subsequently arrested on November 20,

2015, and held in jail until December 1, 2015, when he was released on his own

recognizance.

{¶ 8} After a bench trial held on December 9, 2015, the trial court found Black guilty

on all counts in Case Nos. 15 CRB 6924 and 15 TRD 10946. Black was taken into

custody and held without bond while the trial court referred the matter to adult probation

for a pre-sentence investigation report (PSI). On December 22, 2015, Black was

sentenced in Case No. 15 CRB 6924 to 180 days in jail for failure to comply, with 120

days suspended. Black also received credit for twenty-seven days already served for an

aggregate sentence of thirty-three days in jail. The trial court imposed a $25.00 fine plus

court costs. The trial court merged the obstructing official business charge with the

failure to comply for the purposes of sentencing. In Case No. 15 TRD 10946, Black was

sentenced to 180 days in jail, with twenty-seven days credit for time served, while -5-

suspending the balance of the sentence, and ordering him to pay a $100.00 fine plus

court costs. Since the filing of the instant appeal, Black has served his entire thirty-three

day jail sentence; however, his fines and court costs balance in the amount of $300.30

remains unpaid.

{¶ 9} It is from this judgment that Black now appeals.

{¶ 10} Black’s first assignment of error is as follows:

{¶ 11} “THE STATE FAILED TO PRESENT RELIABLE EVIDENCE ON THE

ISSUE OF IDENTIFICATION TO MEET THEIR BURDEN THAT THE DEFENDANT

COMMITTED THE CRIMES HE IS ACCUSED OF IN CASE NUMBERS 2015 CRB 6924

AND 2015 TRD 10946.”

{¶ 12} In his first assignment, Black contends that the State failed to present

sufficient evidence identifying him as the driver of the Suburban that fled from Deputies

Shiverdecker and Thornton on the afternoon of August 26, 2015. Specifically, Black

argues that Deputy Thornton’s testimony identifying him as the driver of the Suburban

was not credible due to the circumstances surrounding his opportunity and ability to

observe Black during the attempted stop of the vehicle. In our view, it is unclear from his

brief whether Black is challenging the sufficiency of the evidence or arguing that his

convictions are against the manifest weight of the evidence.

{¶ 13} A sufficiency-of-the-evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or to sustain the verdict as a matter of law. State v. Thompkins,

,

(1997). Under a sufficiency analysis, an appellate court does

not make any determinations regarding the credibility of witnesses. State v. Goff, 82 Ohio -6-

St.3d 123, 139,

(1998), citing State v. DeHass,

,

(1967), paragraph one of the syllabus. “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. 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. Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 14} A weight-of-the-evidence argument “challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12; see Eastley v. Volkman,

,

,

, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a greater amount of credible

evidence and relates to persuasion”). When evaluating whether a conviction is against

the manifest weight of the evidence, the appellate court must review the entire record,

weigh the evidence and all reasonable inferences, consider witness credibility, and

determine whether, in resolving conflicts in the evidence, the trier of fact “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,

,

(1997), citing State v. Martin,

,

(1st

Dist. 1983).

{¶ 15} The credibility of the witnesses and the weight to be given to their testimony -7-

are matters for the trier of facts to resolve. State v. DeHass,

,

(1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288,

(Aug. 22, 1997).

{¶ 16} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97–CA–03,

(Oct. 24, 1997).

{¶ 17} “Every criminal prosecution requires proof that the person accused of the

crime is the person who committed the crime. * * * Like any fact, the state can prove the

identity of the accused by ‘circumstantial or direct’ evidence.” State v. Tate,

,

,

, ¶ 15. In the instant case, the State provided

the testimony of Deputy Thornton, who provided the following testimony pertinent to the

issue of his identification of Black as the driver of the Suburban:

The State: When did you first notice them?

Deputy Thornton: Whenever [Deputy Shiverdecker] called the stop

out, I looked up Germantown. Which is maybe, a hundred, a hundred and

fifty yard[s] away from where I’m at. I observed the [Suburban] turn into

the lot and then immediately come right back out to Germantown Street. -8-

Q: Ok. So, when you’re observing all that, have you already pulled

out onto Germantown?

A: Yes, I’m already starting to pull out onto Germantown to head

towards his location.

Q: Ok. And, just, while we’re still down here, tell me what happens

next.

A: I observed the vehicle pull out of the lot onto Germantown. Right

towards me. As the vehicle gets closer, I come to stop on Germantown

Street and the vehicle drives right past me.

Q: Ok. So, you actually – why did you stop your cruiser?

A: He’s coming at me. I know he had just left or fled the stop there

from Deputy Shiverdecker. I stopped on Route 4. That was, there, I can

try and see how many occupants. Whether they’re male or female, inside

the vehicle. And primarily, to try and identify the driver.

Q: Ok. So, how does stopping your vehicle – how does it aid you in

doing that?

A: Whenever I come to a complete stop, that way there you can

observe everything. You don’t have to worry about traffic coming, going.

***

Q: Ok. How does the Suburban – were you able – the Suburban did

end up passing you, at some point?

A: Correct.

Q: Does the Suburban sit up higher from you? -9-

A: Yes, it sits up high.

Q: Ok. And, from the vantage point that you had, were you able to

see who was driving that vehicle?

A: I did.

***

Q: Alright. Is that person sitting in the courtroom today?

A: He is.

Q: And, can you indicate where the person is sitting for the record?

A: He’s sitting at the defense table, wearing a blue – light blue t-shirt.

The State: Ok. Your Honor, I’m going to ask that the record reflect

that Deputy Thornton has identified [Black].

The Court: So noted.

The State: And, as you – as the vehicle pass[es] you, what do you

do next?

Deputy Thornton: As it passes me, I start focusing on the driver, so I

can get a good facial shot of who was driving the vehicle. As the vehicle

comes by me, the driver looks right down – right at me, as he goes by.

Once he goes by, I do – I flip my vehicle around and attempt to follow him.

{¶ 18} Here, the State provided the testimony of Deputy Thornton, who

unequivocally testified that he observed Black driving the Suburban. Deputy Thornton

testified that he saw Black driving by looking at him through the side driver’s window as

the Suburban passed. The windows of the Suburban were not tinted and nothing

obstructed Deputy Thornton’s view of Black as he passed. Moreover, Deputy Thornton’s -10-

identification of Black was made in the early afternoon in full daylight. Once the

Suburban stopped and Black and his passenger fled on foot, Deputy Thornton was able

to identify Black as the driver by searching the computer system for his mugshot, as

provided by his birth certificate found in the vehicle.

{¶ 19} We also note that the State presented the testimony of Dayton Police Officer

Theodore Trupp who had encountered Black driving the same gold-colored Suburban

shortly before the events occurred in the instant case. Specifically, Officer Trupp testified

that he stopped Black approximately four and a half months earlier driving the same

vehicle when he issued him a citation for not having a driver’s license. This evidence, in

conjunction with Deputy Thornton's identification, provided substantial evidence that

Black was the driver during the pursuit in the instant case. State v. Quarles, 2d Dist. Clark

No. 2014 CA 72,

.

{¶ 20} Thus, having reviewed the record, we find no merit in Black's manifest-

weight challenge. It is well settled that evaluating witness credibility is primarily for the

trier of fact. State v. Benton, 2d Dist. Miami No. 2010–CA–27, 2012–Ohio–4080, ¶ 7. A

trier of fact does not lose its way and create a manifest miscarriage of justice if its

resolution of conflicting testimony is reasonable.

Here the trial court quite reasonably

could have credited Deputy Thornton’s testimony identifying Black as the driver of the

Suburban on the day of the attempted stop. Accordingly, the trial court did not lose its

way and create a manifest miscarriage of justice in reaching guilty verdicts for the charged

offenses nor is the evidence of identification insufficient to sustain Black’s convictions.

{¶ 21} Black’s first assignment of error is overruled.

{¶ 22} Black’s second and final assignment of error is as follows: -11-

{¶ 23} “MR. BLACK WAS NOT GIVEN REASONABLE ASSISTANCE FROM HIS

COUNSEL DURING HIS PENDING CASE BECAUSE HIS COUNSEL FAILED TO FILE

A MOTION TO SUPPRESS EVIDENCE WITH REGARDS TO IDENTIFICATION.”

{¶ 24} In his final assignment, Black argues that his trial counsel was ineffective

for failing to file a motion to suppress the testimony of Deputy Thornton identifying him as

the driver of the Suburban.

{¶ 25} “To reverse a conviction based on ineffective assistance of counsel, it must

be demonstrated that trial counsel's conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the result of the trial would have been different.” State

v. Veal, 2d Dist. Montgomery No. 25253, 2013–Ohio–1577, ¶ 7, citing Strickland v.

Washington,

,

,

(1984), adopted by the

Supreme Court of Ohio in State v. Bradley,

,

(1989).

Trial counsel is entitled to a strong presumption that his or her conduct falls within the

wide range of reasonable assistance.

{¶ 26} “[T]he failure to file a motion to suppress does not necessarily constitute

ineffective assistance of counsel.” State v. Layne, 12th Dist. Clermont No. CA2009–07–

043, 2010–Ohio–2308, ¶ 46, citing State v. Madrigal,

,

(2000). It is only considered ineffective assistance of counsel when the record

demonstrates that the motion to suppress would have been successful if made. State v.

Resendiz, 12th Dist. Preble No. CA2009–04–012, 2009–Ohio–6177, ¶ 29, citing State v.

Brown, 12th Dist. Warren No. CA2002–03–026, 2002–Ohio–5455, ¶ 11. The court

in Resendiz presumed that trial counsel was effective if he could have reasonably -12-

decided that filing a suppression motion would be a futile act, even if there is some

evidence in the record to support a motion. Resendiz at ¶ 29. See also State v.

Conkright, 6th Dist. Lucas No. L–06–1107, 2007–Ohio–5315, ¶ 50.

{¶ 27} “The Sixth Amendment does not require counsel to pursue a motion to

suppress in every case.” State v. Bell, 11th Dist. Lake No. 2015–L–017, 2015–Ohio–

4775, ¶ 48, citing State v. Jefferson, 9th Dist. Summit No. 20156,

(Mar.

21, 2001). “However, the failure to file a motion to suppress can constitute ineffective

assistance of counsel if the motion implicates matters critical to the defense and if the

failure results in prejudice.”

{¶ 28} “Where the basis of an ineffective assistance of counsel claim is counsel's

failure to file a motion to suppress evidence, the defendant making that claim must prove

that the basis of the suggested suppression claim is meritorious.” In re D.D., 2d Dist.

Montgomery No. 22740, 2009–Ohio–808, ¶ 3, citing Kimmelman v. Morrison,

,

,

(1986); State v. Pillow, 2d Dist. Greene No. 07CA95,

2008–Ohio–6046.

{¶ 29} In the instant case, Black argues that he received ineffective assistance

when his trial counsel failed to file a motion to suppress the identification testimony of

Deputy Thornton. “Due process may require a court to suppress eyewitness testimony

when the identification results from an unduly suggestive identification procedure.” State

v. Adams,

, 2015–Ohio–3954,

, citing Foster v.

California,

,

,

(1969). “However, no due

process violation will be found where an identification does not stem from an

impermissibly suggestive confrontation, but is instead the result of observations at the -13-

time of the crime.” State v. Davis,

,

(1996);

Coleman v. Alabama,

, 5–6,

,

(1970).

{¶ 30} Upon review, we conclude that Deputy Thornton’s in-court identification of

Black did not stem from an impermissibly suggestive confrontation procedure, but was

instead the result of his observations of Black driving the Suburban at the time the crimes

were committed. Therefore, it would have been a futile act for Black’s trial counsel to file

a motion to suppress Deputy Thornton’s identification testimony, as the motion would

have surely failed. Accordingly, Black’s trial counsel’s failure to file a motion to suppress

does not rise to the level of ineffective assistance.

{¶ 31} Black’s second assignment of error is overruled.

{¶ 32} Both of Black’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

..........

HALL, J. and WELBAUM, J., concur.

Copies mailed to:

Matthew O. Kortjohn Kiriakos G. Kordalis Hon. Christopher D. Roberts