[Cite as State v. Line,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, CASE NO. 1-19-07 PLAINTIFF-APPELLEE,

v.

LARRY LINE, OPINION

DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court Trial Court No. 18TRC12200

Judgment Affirmed

Date of Decision: October 15, 2019

APPEARANCES:

Blaise Katter for Appellant

Anthony M. DiPietro for Appellee Case No. 1-19-07

WILLAMOWSKI, J.

{¶1} Defendant-appellant Larry Line (“Line”) brings this appeal from the

judgment of the Lima Municipal Court finding Line guilty of OVI, but not guilty of

driving through a red light. Line argues on appeal that the evidence was insufficient

to support his conviction and that he was denied the effective assistance of counsel.

For the reasons set forth below, the judgment is affirmed.

{¶2} On November 10, 2019, Line was cited for an OVI in violation of R.C.

4511.19(A)(1)(a) and failing to stop at a red light in violation of local ordinance

414.03(C)(1)(a). Doc. 2. After pleading not guilty, Line retained counsel to

represent him. Doc. 4 and 5. Although counsel noted that she intended to file a

motion to suppress, no motion was filed. Doc. 6. A trial was held to the court on

January 23, 2019. Doc. 7. At the conclusion of the trial, the trial court found Line

guilty of the OVI and imposed sentence.

The trial court found Line not guilty

of failing to stop at a red light. Doc. 8. Line filed a timely notice of appeal. Doc.

11. On appeal, Line raises the following assignments of error.

First Assignment of Error

[Line] was denied the effective assistance of counsel in violation of the Sixth Amendment to the Constitution and Article I, Section 10 of the Ohio Constitution.

Second Assignment of Error

There was insufficient evidence to convict [Line] of being “under the influence” in violation of R.C. 4511.19(A)(1)(a)

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In the interests of clarity, we will address the assignments of error out of order.

Sufficiency of the Evidence

{¶3} In his second assignment of error, Line argues that the evidence was

insufficient to support his conviction for OVI. “Under the sufficiency of the

evidence standard, ‘[t]he 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.

Sullivan, 3d Dist. Hancock No. 5-17-09,

,

quoting State v. Potts,

,

, ¶ 12 (3d Dist.). Line was

cited with a violation of R.C. 4511.19(A)(1)(a). In order to prove this violation in

this case, the State was required to show that he 1) operated a vehicle 2) in the State

of Ohio 3) while under the influence of alcohol.

{¶4} A review of the record shows that there is no question that Line was

driving a car in the State of Ohio. The only issue was whether he was under the

influence of alcohol at the time. Patrolman Ben Thompson (“Thompson”) testified

at trial that he observed Line in his vehicle leaving the parking lot of a bar in Lima,

Ohio at approximately 1:59 a.m. Tr. 5-6. Thompson indicated that he observed the

vehicle roll through a stop sign and at that time, he decided to stop the vehicle. Tr.

8. When Thompson made contact with Line, he noticed that he had bloodshot,

glassy eyes, slurred speech, and had an odor of an alcoholic beverage on his breath.

Tr. 8-9. Thompson identified Line as the driver of the vehicle. Tr. 10.

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{¶5} Patrolman Spencer Cooper (“Cooper”) testified that after Thompson

stopped Line, he arrived on the scene. Tr. 14. Cooper testified that upon

approaching Line, he immediately smelled a strong odor of an alcoholic beverage

and noted that Line had slow, methodical movements. Tr. 22. Cooper testified that

at some point, Line admitted “that he had drank two Roman cokes. I believe he had

meant rum and cokes, but he did admit that he had two alcoholic beverages that

night.” Tr. 24. Cooper asked Line to perform the field sobriety tests and Line

agreed. Tr. 24. When Cooper conducted the HGN test on Line, Cooper noted four

out of six clues. Tr. 25. Cooper testified that his training and experience told him

that a person with four out of the six clues was over the .08 alcoholic limit for

consumption of alcohol. Tr. 26. Based upon the evidence before him, Cooper

placed Line under arrest for OVI. Tr. 26.

{¶6} Line argues on appeal that there was insufficient evidence of

intoxication. In support of this argument, Line notes that the State failed to put the

NHTSA manual regarding the HGN test into evidence and thus relying on it to show

intoxication was inappropriate. At oral argument, the State conceded that the better

practice would have been to submit a copy of the manual to the court, but argued

the manual was not necessary to be able to use the HGN test for signs of

intoxication. The Ohio Supreme Court has previously held “that the HGN test has

been shown to be a reliable indicator of BAC levels.” State v. Bresson,

,

(1990). “Accordingly, results of this test are

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admissible so long as the proper foundation has been shown both as to the officer’s

training and ability to administer the test and as to the actual technique used by the

officer in administering the test.”

“[T]he only requirement prior to admission

[of the HGN test results] is the officer’s knowledge of the test, his training, and his

ability to interpret his observations.”

.

{¶7} Here, Cooper testified that he was trained in the proper technique for

conducting the HGN test and then practiced doing so in “wet labs”. Tr. 15-16. The

wet labs are when they randomly test volunteers to determine if they have consumed

alcohol without knowing which volunteers have and which have not. Tr. 16-17.

Cooper testified that the more alcohol one has consumed, the more nystagmus can

be observed. Tr. 18. Cooper testified as to the procedure he was taught to use while

conducting an HGN test. Tr. 18-21. Cooper further testified that he conducted the

HGN test on Line and observed lack of smooth pursuit in both eyes and the distinct

and sustained nystagmus at maximum deviation in both eyes, making four out of six

clues. Tr. 25. However, Cooper did not observe nystagmus onset prior to 45

degrees. Tr. 25-26. From his training, Cooper was able to determine that Line was

over the legal limit of .08 BAC. Tr. 26. This court notes that Line was not charged

with having a BAC over .08, but rather with driving while impaired. Thus, the

actual level of BAC is not critical in this case. We note that “a properly qualified

officer may testify at trial regarding a driver’s performance on the HGN test as to

the issue of probable cause to arrest and use the same in forming an opinion whether

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the suspect is under the influence of alcohol.” State v. Smith, 5th Dist. Richland No.

09-CA-55,

, ¶ 17. This is true even when the results would not be

admissible to show the exact alcohol concentration of the driver.

{¶8} In addition to the HGN test, both officers testified to other signs of

impairment. Thompson testified that he saw Line fail to come to a complete stop at

a stop sign. A review of the dash camera footage confirms this testimony.

Thompson also testified to Line having bloodshot eyes, a strong odor of an alcoholic

beverage around his person, and slurred speech. Cooper testified to these same

signs, noting that the red, bloodshot, glassy eyes are “a sign of intoxication due to

the lack of oxidation from the eyes, and they – they constrict. That’s why they

become red.” Tr. 23. Cooper also testified that when he asked Line questions, he

noted the following.

[H]e kind of had a – a dazed look. He was looking down, and it’s – time he had moved, they were – they were very slow. Being that alcohol is a depressant, it slows your – your fine motor movements.

Tr. 23. Viewing this evidence in a light most favorable to the prosecution, there

was evidence presented on each of the elements of the OVI offense. There was

testimony that Line was driving his vehicle in Lima, Ohio and that he was under the

influence of alcohol at the time, including his own admission of alcohol

consumption, the bloodshot, glassy eyes, the slurred speech, the slow and

methodical movements, and the presentation of four out of six clues on the HGN

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test showing alcohol consumption. Cooper testified that he believed Line was

impaired at that time and that was why he arrested Line. Tr. 26. Viewing the

evidence in a light most favorable to the State a rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.

The second assignment of error is overruled.

Ineffective Assistance of Counsel

{¶9} Line alleges in the first assignment of error that he was denied the

effective assistance of counsel.

In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done.” State v. Hester (1976),

,

,

, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.” State v. Lytle (1976),

, 396–397,

,

, vacated on other grounds (1978),

,

,

.

On the issue of counsel's ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965),

,

,

; State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun,

,

,

. “The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

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violation makes it unnecessary for a court to consider the other prong of the test.”

State v. Walker, 3d Dist. Seneca No. 13-15-42,

.

{¶10} In support of the assignment of error, Line claims that his trial counsel

erred by 1) failing to file a motion to suppress; 2) failing to challenge the admission

of the HGN test under R.C. 4511.19(D)(4); and 3) failing to advocate for Line at

trial. Line also argues that even if all of the alleged errors are not determined to be

prejudicial, the cumulative effect of them was prejudicial. The first argument is that

counsel was ineffective for failing to file a motion to suppress. “[T]he failure to file

a motion to suppress constitutes ineffective assistance of counsel only when the

record establishes that the motion would have been successful if made.”

at ¶ 23 quoting State v. Brown, 12th Dist. Warren No. CA2002-03-026, 2002-

Ohio-5455, ¶ 11. Line argues that since there was no evidence he ran a red light,

the officer lacked probable cause to stop him. However, a review of the testimony

of Thompson and the video shows that although Line did not go through a red light,

he did commit a traffic violation by failing to come to a complete stop at a stop sign.

“[I]f an officer's decision to stop a motorist for a criminal violation, including a

traffic violation, is prompted by a reasonable and articulable suspicion considering

all the circumstances, then the stop is constitutionally valid.” State v. Mays,

,

, ¶ 8,

. The trial court specifically

noted the following concerning the officer’s probable cause to stop Line.

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[T]he defendant was observed operating a motor vehicle, leave Lombardo’s.

He left, didn’t place his car in the lane of travel, went across at least three lanes into a street and then was in a lane of travel, which is unusual driving behavior. He rolled a stop sign, didn’t come to a complete stop. That was evident from the video.

Tr. 31-32. Since there was a traffic violation, regardless of whether it was the

violation for which Line was cited and later acquitted, the officer had probable cause

to stop the vehicle. Thus, any motion to suppress would not have been successful.

The failure to file the motion is not ineffective assistance of counsel because it was

not prejudicial.

{¶11} The second argument for the ineffective assistance of counsel claim is

that counsel failed to object to the admission of the HGN test results since the

NHSTA manual was not admitted as an exhibit. Line argues that the State failed to

elicit testimony from Cooper regarding the test or his training and therefore the tests

should have been excluded. A review of the record shows that Cooper offered

extensive testimony regarding his training in administering the tests, the test itself,

and the proper procedures for administering the test. See Tr. 15-21. Since this was

a bench trial and nothing in the record indicates that the evidence was used for an

improper purpose, there would be no prejudice from the alleged error. State v.

Arnold,

,

,

.

{¶12} Line next argues that counsel was ineffective for failing to advocate

for him at trial. In support of this claim, Line points to six issues: 1) waiver of

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opening statement; 2) failure to cross-examine Thompson regarding impairment; 3)

failure to cross-examine Cooper; 4) waiving closing argument; 5) failure to offer

mitigation; and 6) failure to ask for a stay pending appeal. This Court notes that the

opening statement is not evidence and was waived by both sides in this case.

“[T]rial counsel's failure to make an opening statement * * * does not automatically

establish the ineffective assistance of counsel.” State v. Myers,

,

,

. Line does not provide any argument as

to how this was an error.

{¶13} Next, Line claims that counsel was ineffective for not fully cross-

examining Thompson and not cross-examining Cooper at all. “The scope of cross-

examination falls within the ambit of trial strategy, and debatable trial tactics do not

establish ineffective assistance of counsel.” State v. Conway,

,

, ¶ 101,

. Line does not argue what would have

been different if counsel had chosen a different strategy. Counsel cross-examined

Thompson about the stop and Line was found not guilty on the charge of running

the red light. However, the failure to come to a complete stop at the stop sign was

evident on the video and supported by Thompson’s testimony. Thompson and

Cooper both testified as to the physical clues of alcohol consumption and

impairment, including Line’s admission. Given this evidence, Line offers no

questions which could have been asked by counsel that would cause the trial court

to find him not guilty. Line argues that the result would be different, but presents

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no argument as to why this would be, just a conclusory statement that it would be.

Conclusory statements alone are insufficient to find that counsel was ineffective.

See State v. Gibson,

,

(10th Dist. 1992).

{¶14} Line also claims counsel was ineffective for failing to make a closing

argument and for not speaking in mitigation for Line at sentencing. The waiver of

closing arguments is a tactical decision and is thus not ineffective assistance of

counsel. State v. Burke,

,

,

,

State v. Frierson, 8th Dist. Cuyahoga

,

and State v. Guysinger, 4th Dist. Ross No. 15CA3514,

. Line

does not argue with any specificity how this prejudiced him. Although this Court

does recognize that counsel’s performance may not have been optimal by making

no arguments on behalf of her client, a review of the record along with the

allegations in the brief do not point to any evidence which could have been argued

that would have changed the outcome of the case. Prior to sentencing, Line spoke

with the judge and he admitted having consumed some alcohol earlier in the day.

Tr. 35-37. He also was able to ask for the trial court to reduce the sentence and the

trial court considered this and permitted him to complete 20 of the 30 day jail

sentence under house arrest. Tr. 39. No evidence in the record indicates that had

the attorney made the argument, the outcome would have been different. Thus, the

record does not show that the failure to make the arguments prejudiced Line.

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Without a showing of prejudice, there can be no ineffective assistance of counsel.

{¶15} Line also claims that counsel was ineffective for failing to ask for a

stay of sentence pending appeal. A review of the record does not provide any

indication that this would likely have changed the outcome. Additionally, having

found that the conviction for the OVI was proper, the sentence would have to be

served eventually anyway. Thus, there is no prejudice in any alleged error by

counsel.

{¶16} Finally, Line claims that the cumulative effect of the errors resulted in

him having ineffective assistance of counsel. “[A] judgment may be reversed if the

cumulative effect of multiple errors deprives a defendant of his constitutional rights

even though, individually, the errors may not rise to the level of prejudicial error or

cause for reversal.” In re Guardianship of Clark, 10th Dist. Franklin No. 09AP-96,

, ¶ 27. “Merely alleging multiple errors ‘does not require reversal

if those errors still, when taken in context of the entire trial, do not produce an unfair

trial.’” Ohio Dept. of Natural Resources v. Knapke, 3d Dist. Mercer No. 10-14-03,

, ¶ 45,

. A conviction will only be reversed for the

cumulative effect of errors where a defendant has been deprived of the right to a fair

trial even though the individual errors do not provide a basis for reversal. State v.

Garner,

,

,

. The doctrine does

not apply unless multiple instances of harmless error are found.

This doctrine

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has also been applied to multiple alleged errors of trial counsel. City of Columbus

v. Beasley, 10th Dist. Franklin No. 17AP-629,

. However when none

of the alleged individual claims of ineffective assistance of counsel has merit,

ineffective assistance of counsel is not established “by combining those

unsuccessful claims together. Id. at ¶ 80. Here, all of Line’s alleged errors by trial

counsel have been determined to be meritless. Thus, there is no cumulative error.

The first assignment of error is thus overruled.

{¶17} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Lima Municipal Court is affirmed.

Judgment Affirmed

SHAW, J., and PRESTON, J., concur

/hls

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