State v. Abass
2017 Ohio 7034
| Ohio Ct. App. | 2017Background
- On April 9, 2016 Trooper Whitacre stopped Abass for speeding (57 mph in a 45 mph zone); Abass was the sole occupant and indicated he lived nearby.
- Trooper smelled alcohol, observed bloodshot/glassy eyes, and Abass admitted drinking (dispute as to whether a bottle or a glass). Abass performed standardized field sobriety tests and exhibited numerous signs of impairment.
- At the post, Whitacre advised Abass on chemical-test consequences (BMV-2255); Abass refused the breath test. Trooper also offered a portable breath test at the scene, which Abass declined.
- Abass was charged with OVI (R.C. 4511.19(A)(1)(a)) and later with refusal OVI with a prior within 20 years (R.C. 4511.19(A)(2)); he had a prior Michigan OVI conviction.
- Abass waived a jury trial, proceeded to a bench trial, was found guilty, and sentenced (jail, house arrest, treatment). He appealed raising four assignments of error: unlawful stop, manifest weight/sufficiency, Crim.R. 29 insufficiency, and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Abass) | Held |
|---|---|---|---|
| Legality of stop/probable cause | Stop was supported by observed speeding (radar) | Stop was a de minimis violation and did not justify investigatory stop/arrest | Abass waived suppression argument by withdrawing motion; appellate court declined to consider it |
| Sufficiency of evidence for OVI | Trooper’s observations, SFST failures, odor, admissions, and refusal support conviction | SFST performance may be explained by medical conditions; video/audio poor quality; disputed admission amount | Evidence was sufficient; conviction not against manifest weight |
| Crim.R. 29 motion (directed verdict) | Evidence presented met elements beyond reasonable doubt | Trial court should have granted acquittal for insufficiency | Motions overruled; conviction affirmed |
| Ineffective assistance of counsel | Counsel was reasonably strategic; suppression motion withdrawal not shown to be prejudicial | Counsel erred by withdrawing/not renewing suppression motion and failing to object during testimony | Claim rejected: Abass did not show counsel deficient or resulting prejudice |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for manifest-weight review)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency of evidence review)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective-assistance test)
- Michel v. Louisiana, 350 U.S. 91 (U.S. 1955) (deference to counsel as reasonable strategy in ineffective-assistance analysis)
- State v. Yarbrough, 95 Ohio St.3d 227 (Ohio 2002) (trial court as factfinder assesses witness credibility)
- State v. Smith, 17 Ohio St.3d 98 (Ohio 1985) (presumption that licensed attorneys perform duties ethically and competently)
- State v. Holloway, 38 Ohio St.3d 239 (Ohio 1988) (prejudice required to sustain ineffective-assistance claim based on failure to object)
Conclusion: The appellate court affirmed the Massillon Municipal Court: suppression argument waived; sufficiency and weight of evidence supported the OVI convictions; and ineffective-assistance claims failed.