[Cite as State v. Zehenni,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NO. CA2016-03-020 Plaintiff-Appellee, : OPINION : 12/19/2016 - vs - :

ANDRE J. ZEHENNI, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM MASON MUNICIPAL COURT Case No. 15CRB00130

Bethany Bennett, Mason Municipal Court Prosecutor, 5950 Mason-Montgomery Road, Mason, Ohio 45040, for appellee

Albert Giuliani and Joseph Morse, 323 West Lakeside, Suite 300, Cleveland, Ohio 44113, for appellant

Nicholas Graman and Charles Rittgers, 12 East Warren Street, Lebanon, Ohio 45036, for appellant

M. POWELL, P.J.

{¶ 1} Defendant-appellant, Andre Zehenni, appeals his convictions in the Warren

County Court of Common Pleas for operating a vehicle under the influence ("OVI") and using

a weapon while intoxicated. Zehenni, driving home from Buffalo Wild Wings ("BW3") on

Super Bowl Sunday 2015, rear-ended a vehicle travelling on the same road. After the Warren CA2016-03-020

collision, Zehenni stopped momentarily but then continued driving at about ten miles per

hour. The other driver followed Zehenni and contacted police.

{¶ 2} Mason Police Officer Slone responded and initiated a traffic stop. Zehenni

briefly drove off the road as he was pulling over. Officer Slone approached Zehenni's vehicle

and observed that the airbags had deployed. Slone stood behind the driver side door and

observed Zehenni's behavior for about 30 seconds before approaching the vehicle window.

Slone observed Zehenni turned away from him and "fumbling" for a pack of gum in the

vehicle's center console. When Slone knocked on the vehicle window, Zehenni slowly turned

away from the center console, assumed a normal driving position, and stared out through the

windshield without acknowledging the officer.

{¶ 3} Slone opened the vehicle door and asked Zehenni if he knew he had been in a

crash. Zehenni said "yes." Slone then detected the smell of an alcoholic beverage and

asked Zehenni if he had been drinking. Zehenni replied, "no." For some time, Zehenni

simply replied "no" to every question Slone asked. Zehenni refused to identify himself and

also refused to leave the vehicle.

{¶ 4} Slone told Zehenni that if he did not exit the vehicle he would be arrested.

Zehenni responded by extending his left arm out of the vehicle and slowly stepping towards

Slone, while stating "you know I used to be a cop." Slone took Zehenni by the arm and led

him between Zehenni's vehicle and the police cruiser.

{¶ 5} By checking the vehicle's license plate, Slone was aware that Zehenni had a

permit to carry a concealed weapon. Slone asked Zehenni whether there was a weapon in

the vehicle. Zehenni responded affirmatively and indicated he thought the gun was in the

trunk. A second officer who arrived searched the trunk.

{¶ 6} Zehenni moved towards the trunk several times in an apparent effort to help the

police locate the gun. Slone repeatedly warned Zehenni to stop moving towards the trunk -2- Warren CA2016-03-020

and, when he persisted, eventually placed him in handcuffs. Zehenni then recalled that the

gun was not in the trunk but in the vehicle's front passenger-side compartment instead. The

other officer retrieved Zehenni's loaded revolver, which was holstered and located in a bag

on the passenger side floorboard.

{¶ 7} Throughout the stop, Slone continued to detect the smell of an alcoholic

beverage coming from Zehenni's breath, which would increase when Zehenni spoke. The

officer asked Zehenni to perform the walk-and-turn field sobriety test. Zehenni declined,

explaining that he had a broken femur and ankle trauma because of an earlier vehicle

accident and did not believe he could perform the test. Zehenni also declined to perform the

horizontal gaze nystagmus test, but without providing a reason.

{¶ 8} Slone placed Zehenni under arrest for operating a vehicle while intoxicated,

using a weapon while intoxicated, and various traffic violations. Later at the police station,

Zehenni refused to submit to the breathalyzer test.

{¶ 9} The city tried Zehenni by jury. Slone and the other officer testified about their

observations and interactions with Zehenni. On cross-examination, both officers testified that

they did not know if Zehenni's revolver was operable.

{¶ 10} Zehenni testified in his own defense. After he got off work that Sunday, his

friend Roberta Frazier invited him to her house. En route, he picked up a bottle of vodka.

When he arrived at Frazier's, he made himself a cocktail of orange juice and about a shot of

vodka. Zehenni drank about half of this cocktail then he, Frazier, and Frazier's friend, Lianne

Harris, made their way to BW3 to watch the second half of the Super Bowl. Zehenni was not

feeling well and he drove separate from Frazier and Harris.

{¶ 11} Everyone arrived at BW3. But Zehenni briefly remained in his vehicle to make

some work calls. He then entered BW3 and informed his two companions that he was going

home because he was not feeling well. Zehenni testified that he had no other alcoholic -3- Warren CA2016-03-020

drinks before the cocktail and none after.

{¶ 12} Frazier and Harris testified that the only drink that they observed Zehenni drink

that night was the cocktail at Frazier's house and that he did not seem impaired. Both also

confirmed that he left the bottle of vodka at Frazier's house, where it remained when they

returned later that evening.

{¶ 13} Zehenni claimed that the last memory he had before the accident was turning

out of the BW3 parking lot. His memory then resumed, somewhat foggily, around the time

Officer Slone placed him in the back of the police car. In the accident, Zehenni sustained a

broken sternum, which he sought treatment for some time later. Zehenni also sustained a

"knot" or "mark" on his head from the accident for which he never sought treatment.

{¶ 14} The jury found Zehenni guilty of OVI and using a weapon while intoxicated. On

appeal, Zehenni raises six assignments of error.

{¶ 15} Assignment of Error No. 1:

{¶ 16} THE JURY ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE

APPELLANT WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO FIND

DEFENDANT GUILTY.

{¶ 17} Assignment of Error No. 2:

{¶ 18} THE JURY ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE

APPELLANT WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

PRESENTED AT TRIAL.

{¶ 19} Zehenni argues that his OVI conviction was not supported by sufficient

evidence and that the greater weight of the evidence demonstrated that he was not

intoxicated but rather sustained a head injury in the traffic accident. Zehenni further argues

that his conviction for using a weapon while intoxicated was not supported by sufficient

evidence because the city failed to offer evidence that the gun recovered from his vehicle -4- Warren CA2016-03-020

was operable.

OVI

{¶ 20} Zehenni argues that he only had half of a single alcoholic beverage, that his two

witnesses testified that they did not observe him to be impaired, that he did not smell of an

alcoholic beverage to his witnesses, and that any indicia of impairment observed by police

that evening was consistent with head trauma occurring because of the traffic accident. The

city counters that there was ample evidence indicating that Zehenni was impaired, including

his own admission that he consumed alcohol, the accident, and his behavior during the traffic

stop.

{¶ 21} When reviewing the sufficiency of the evidence to support a criminal conviction,

an appellate court's function is to examine the evidence admitted at trial to determine

whether such evidence, viewed in a light most favorable to the prosecution, would convince

the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jones, 12th

Dist. Butler No. CA2012-03-049,

. In determining whether a judgment is

against the manifest weight of the evidence, an appellate court must look at the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of witnesses, 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. Cooper, 12th Dist. Butler No. CA2010-05-113,

,

¶ 7. The discretionary power to grant a new trial should be exercised only in exceptional

cases where the evidence weighs heavily against the conviction. State v. Thompkins,

(1997).

{¶ 22} The evidence at trial demonstrated that Zehenni crashed his vehicle into an

another vehicle that was traveling in the same direction. The other driver testified that her

speed was 35 miles per hour and described the impact as "very hard." Zehenni's airbags -5- Warren CA2016-03-020

deployed. The front of Zehenni's car sustained substantial damage as did the rear of the

other driver's car. Despite the accident and airbag deployment, Zehenni continued to drive at

an unusually slow speed.

{¶ 23} Zehenni behaved oddly during the traffic stop and was generally non-compliant

in responding to basic questions and commands from the police. Both Slone and the other

officer testified that they detected the smell of an alcoholic beverage coming from Zehenni's

breath, that his eyes were glassy, and that his movements were slow and deliberate. We

find that these facts constitute sufficient evidence to allow the jury to consider whether

Zehenni was guilty beyond a reasonable doubt of OVI.

{¶ 24} This court also cannot conclude that the jury lost its way in convicting Zehenni

of OVI. The jury clearly rejected Zehenni's claim that he only consumed half of a cocktail that

night or was otherwise not impaired from alcohol or drugs. The jury also presumably rejected

Zehenni's contention that his behavior and loss of memory was because of an undiagnosed

and untreated head injury. With respect to credibility determinations, we defer to the fact-

finder. State v. Andrews, 12th Dist. Butler No. CA2009-02-052,

, ¶ 46.

{¶ 25} Even if the jury believed Zehenni's witnesses' testimony, it still could have

concluded that he was guilty of OVI. Both witnesses testified that they interacted with

Zehenni for a relatively short time before the accident occurred. Neither could know for

certain whether Zehenni had consumed any other drinks or drugs that day. Finally, while

Zehenni's behavior could have been explained by a medical issue, like head trauma, another

reasonable interpretation of the evidence is simply that Zehenni was too drunk to drive.

{¶ 26} After carefully reviewing the record, we find that there was sufficient evidence to

support Zehenni's conviction for OVI. Further, we do not find that the jury lost its way or

created such a manifest miscarriage of justice that his conviction must be reversed.

Consequently, the first and second assignments of error, as they relate to Zehenni's OVI -6- Warren CA2016-03-020

conviction, are overruled.

Using Weapons While Intoxicated

{¶ 27} Zehenni argues that there was insufficient evidence to support his conviction for

using weapons while intoxicated because the city failed to submit evidence that the gun

found in his vehicle was operable. "Using weapons while intoxicated" under City of Mason

Codified Ordinance ("Mason City Code") 549.03 required the city to prove that Zehenni

carried a "firearm." The city code defines "firearm" as:

(1) Any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. FIREARM includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable.

(2) When determining whether a firearm is capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant, the trier of fact may rely upon circumstantial evidence, including, but not limited to, the representations and actions of the individual exercising control over the firearm.

Mason City Code 549.01(i).1

{¶ 28} Accordingly, the city was required to prove beyond a reasonable doubt the

gun's operability. State v. Murphy,

(1990). Viewing the evidence

in a light most favorable to the prosecution, this court concludes that a rationale jury could

not be convinced beyond a reasonable doubt that Zehenni's gun was operable or could be

easily rendered so.

{¶ 29} Despite the ease at which it could be accomplished, the city failed to offer any

direct evidence of operability. Slone and the other officer both confirmed that they did not

know if the gun was operable and it appears no one else at the city ever test-fired the gun.

Zehenni testified but the city failed to use this opportunity to ask him any questions related to

1. Mason City Code 549.01(i) mirrors R.C. 2923.11(B). -7- Warren CA2016-03-020

the gun's operability.

{¶ 30} The evidence on operability was circumstantial and was produced during

counsel's examination of other aspects of the case. Zehenni testified that he owned the gun

for safety reasons because his work was located in a bad neighborhood. The gun was

loaded when recovered by police. The state submitted the gun and its ammunition into

evidence. However, the jury was not instructed by the court on the statutory definition of

firearm, including its operability element. Therefore, it begs the question to argue that the

admission of the gun and ammunition into evidence constitutes evidence of operability, as

absent an instruction on operability, the jury would have no occasion to examine the gun to

consider whether it was operable.2 Hence, we do not find that the gun and ammunition

themselves may be relied upon as evidence of operability based upon the specific facts of

this case.

{¶ 31} While circumstantial evidence can be used to prove the operability of a gun, the

state's burden is still proof beyond a reasonable doubt. And we cannot find on these facts

that any rationale trier of fact could determine, beyond a reasonable doubt, the gun's

operability. Other courts have concluded similarly when the state has failed to meet its

burden of proof on operability. In re Arledge, 4th Dist. Ross No. 95 CA 2164,

(Sept. 4, 1996), *5 ("It would have been a simple matter to either test fire the

weapon, or at least to ask the owner about its operability. However, the state did neither");

see also State v. Boyd, 6th Dist. Lucas No. L-97-1366,

(Dec. 4, 1998).

Accordingly, we find that the city failed to prove an essential element of the crime of using

weapons while intoxicated. And we therefore sustain Zehenni's second assignment of error

as to the charge of using weapons while intoxicated.

2. Zehenni raises this issue in his third assignment of error, which we do not address in light of our reversal here. -8- Warren CA2016-03-020

{¶ 32} Assignment of Error No. 3:

{¶ 33} APPELLANT WAS DEPRIVED OF DUE PROCESS OF LAW AS A RESULT

OF THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE DEFINITION OF

"FIREARM," AN ESSENTIAL ELEMENT OF THE OFFENSE OF USING WEAPONS WHILE

INTOXICATED.

{¶ 34} Zehenni argues that the trial court erred when it failed to instruct the jury on the

statutory definition of "firearm" in using weapons while intoxicated under Mason City Code

549.03. This assignment of error is moot based upon our reversal on Zehenni's second

assignment of error.

{¶ 35} Assignment of Error No. 4:

{¶ 36} THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING

APPELLANT'S MOTION TO SUPPRESS AS THERE WAS INSUFFICIENT PROBABLE

CAUSE TO ARREST APPELLANT FOR OVI.

{¶ 37} Before trial, Zehenni moved to suppress all evidence obtained from the traffic

stop and the trial court denied the motion after an evidentiary hearing. In this assignment of

error, Zehenni argues that Officer Slone did not have probable cause to arrest him for OVI

because the only evidence indicating that he was impaired could have been the result of

injuries he sustained in the traffic accident. Furthermore, Zehenni argues that the odor of an

alcoholic beverage on his breath, coupled with a traffic accident, does not establish probable

cause for an OVI arrest.

{¶ 38} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023,

. The trial court, as the factfinder, is in the best position to resolve factual questions and

evaluate witness credibility. Therefore, when reviewing the denial of a motion to suppress, a

reviewing court is bound to accept the trial court's findings of fact if they are supported by -9- Warren CA2016-03-020

competent, credible evidence. This court, however, independently reviews the trial court's

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard.

{¶ 39} An officer must have probable cause to arrest a person without a warrant.

State v. Aslinger, 12th Dist. Preble No. CA2011-11-014,

, citing Beck v.

Ohio,

,

(1964). The test for establishing probable cause to

arrest without a warrant is whether the facts and circumstances within an officer's knowledge

were sufficient to warrant a prudent individual in believing that the defendant had committed

or was committing an offense. A probable cause determination is based upon the totality of

the facts and circumstances.

{¶ 40} Zehenni cites State v. Huening, 12th Dist. Butler No. CA94-01-017,

(Sept. 19, 1994), for the proposition that a traffic accident, coupled with detecting the

odor of an alcoholic beverage does not provide a police officer with probable cause to arrest

for OVI. The facts in Huening are distinguishable from those here. The defendant in

Huening was not at fault in the accident and the investigating officer had no knowledge that

she was driving erratically or that her driving was impaired in any way. Id. at *3.

{¶ 41} At the suppression hearing, Officer Slone testified that he was aware that

Zehenni caused the traffic accident and left the scene of the accident. Slone observed that

Zehenni had issues removing his seat belt, displayed unusual behavior during the stop, had

an odor of an alcoholic beverage on his breath, had "glassy" eyes, showed elongated motor

movements and was "fumbling" to retrieve a pack of chewing gum, presumably to mask the

odor of his breath, at the time of the traffic stop. This court finds that these facts and

circumstances provided Slone with the requisite probable cause to arrest Zehenni for

impaired driving. That there may be an alternate explanation for these occurrences, i.e.,

injuries from a traffic accident, does not eliminate the existence of probable cause. - 10 - Warren CA2016-03-020

Accordingly, the fourth assignment of error is overruled.

{¶ 42} Assignment of Error No. 5:

{¶ 43} THE PROSECUTOR'S MISCONDUCT VIOLATED APPELLANT'S RIGHT TO

A FAIR TRIAL GURANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE 1,

SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

{¶ 44} Zehenni argues that the prosecutor engaged in prosecutorial misconduct during

closing arguments. The prosecutor commented that the state believed that Zehenni was

lying about his lack of memory before and after the accident. Zehenni argues that this

comment prejudiced him because it swayed the jury with respect to his credibility. Zehenni

did not object at the time the prosecutor's comments were made, and our standard of review

is therefore plain error affecting substantial rights. Crim.R. 52(B).

{¶ 45} The prosecution is entitled to a certain degree of latitude in its concluding

remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043,

, ¶ 58. A

court will find prosecutorial misconduct only when the remarks made during closing were

improper and those improper remarks prejudicially affected substantial rights of the

defendant.

The focus of an inquiry into allegations of prosecutorial misconduct is the

fairness of the trial, not the culpability of the prosecutor. State v. Gray, 12th Dist. Butler No.

CA2011-09-176,

, ¶ 57. Therefore, a finding of prosecutorial misconduct will

not be grounds for reversal unless the defendant has been denied a fair trial because of the

prosecutor's prejudicial remarks. Layne at ¶ 60.

{¶ 46} It is improper for a prosecutor to attack the credibility of a defendant or a

witness in a trial based only upon the prosecutor's personal beliefs and not based on the

evidence that was submitted at trial. State v. Ross,

(12th Dist.

1999). While prosecutors should always avoid voicing their personal opinions about the guilt - 11 - Warren CA2016-03-020

of the defendant, such statements are not necessarily prejudicial per se. State v. Stephens,

(1970).

{¶ 47} In closing arguments, the prosecutor said the following concerning Zehenni's

claim that he could not remember what occurred before and after the traffic accident: "The

State believes that he's completely making up that he has no memory of it, that's what the

State believes. . . But it doesn't matter necessarily what I believe, what does matter is what

he has testified to is unreasonable."

{¶ 48} The remark was made in the context of discussing video evidence that the

prosecutor believed contradicted Zehenni's claims that he had no memory of the accident.

The choice of words was unfortunate, but placed in its proper context we do not find that the

comment was improper. Even if we concluded that the comment was improper, viewing this

isolated and brief remark in the context of the entire trial, we would find that Zehenni received

a fair trial on the OVI charge. That conviction was supported by the greater weight of the

evidence and we do not perceive that this remark could have possibly affected that result.

There is no plain error here and the fifth assignment of error is overruled.

{¶ 49} Assignment of Error No. 6:

{¶ 50} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION WHEN

THAT COUNSEL'S REPRESENTATION WAS PROFESSIONALLY UNREASONABLE, IS

PREJUDICIAL TO DEFENDANT, AND FELL BELOW AN OBJECTIVE STANDARD OF

REASONABLENESS.

{¶ 51} Zehenni claims his trial counsel was ineffective for: (1) failing to introduce

medical records, (2) failing to retain an expert witness, and (3) failing to object to the lack of a

"firearm" definition in the jury instructions. We do not address the third argument because it

is moot based on our reversal on the second assignment of error. - 12 - Warren CA2016-03-020

{¶ 52} Counsel is strongly presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable professional judgment. State v.

Hendrix, 12th Dist. Butler No. CA2012-05-109,

. To prevail on an

ineffective assistance of counsel claim, Zehenni must show his trial counsel's performance

fell below an objective standard of reasonableness and that he was prejudiced as a result.

Strickland v. Washington,

,

(1984).

{¶ 53} In order to demonstrate prejudice, Zehenni must establish that, but for his trial

counsel's errors, there is a reasonable probability that the result of trial would have been

different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053,

.

A "reasonable probability" is a probability that is "sufficient to undermine confidence in the

outcome."

. The failure to make an adequate showing on either prong is

fatal to an ineffective assistance of counsel claim. Kinsworthy at ¶ 42.

Failure to Introduce Medical Records

{¶ 54} Zehenni argues that trial counsel was ineffective for failing to introduce certain

medical records into evidence, which he claims would have corroborated his defense of

having suffered a head injury. The record reflects that Zehenni intended to introduce two

sets of medical documents, one from the Warren County Jail a day or so after his arrest,

which reflect that he complained to the medical staff about chest pains and a headache, and

records from UC Health over a month after the accident, where Zehenni was apparently

diagnosed with a broken sternum.

{¶ 55} We do not find that trial counsel's performance fell below a reasonable

standard of effectiveness for failing to submit these medical records into evidence. Zehenni

testified about his medical complaints at the Warren County Jail as well as his diagnosis at

UC Health for the broken sternum. These facts were not controverted by the city.

{¶ 56} The documents would have been simply duplicative of Zehenni's testimony. - 13 - Warren CA2016-03-020

Moreover, these documents do not corroborate Zehenni's defense of having suffered

significant head trauma, which resulted in his behavior during the traffic stop. At best, the

record reflects that Zehenni complained of a headache a day or two after the accident, an

ailment for which he never sought treatment. Accordingly, this argument is meritless.

Failure to Present Expert Testimony

{¶ 57} Zehenni also argues that trial counsel was ineffective for failing to secure the

testimony of a medical doctor who could explain to the jury how an individual in a vehicle

accident might exhibit behavior consistent with an intoxicated driver. The decision of whether

or not to call an expert witness is a matter of trial strategy. State v. Coleman,

(1989). As such, a decision by trial counsel not to call an expert witness

generally will not sustain an ineffective assistance of counsel claim. State v. Nicholas,

(1993); State v. Thompson,

(1987).

{¶ 58} We cannot conclude that trial counsel was ineffective for failing to secure an

expert who would testify along the lines suggested by Zehenni. Evid.R. 703 provides that

"[t]he facts or data in the particular case upon which an expert bases an opinion or inference

may be those perceived by the expert or admitted in evidence at the hearing." Zehenni did

not seek any medical treatment related to his purported head injury. Consequently, no

medical expert could offer an opinion based on providing treatment to Zehenni at or around

the time of the accident or based upon a review of medical records concerning the claimed

head injury. Accordingly, any expert would be limited to the evidence introduced at trial

concerning Zehenni's alleged head injuries. That evidence showed that Zehenni was in an

accident where an airbag deployed and later complained of a headache. Evid.R. 702

requires that an expert's testimony be based on reliable and scientific information. An

opinion rendered by an expert that Zehenni was more likely suffering from a head injury –

derived from this limited amount of information – would seem far too speculative to be - 14 - Warren CA2016-03-020

admissible. Accordingly, this argument is meritless.

{¶ 59} Judgment reversed as to appellant's conviction for using weapons while

intoxicated and appellant is hereby discharged on that conviction. In all other respects, the

judgment is hereby affirmed.

S. POWELL and PIPER, JJ., concur.

- 15 -