State v. AndersonState v. Anderson
MOORE, Presiding Judge.
{¶1} Defendant-Appellant, Tina F. Anderson, appeals from her sentence and conviction set forth in the July 16, 2012 judgment entry of the Summit County Court of Common Pleas. We affirm.
I.
{¶2} On the evening of June 4, 2011, a black Jeep Cherokee was seen driving errаtically without its headlights on and repeatedly weaving into oncoming lanes of traffic on West Market Street in Akron. Meredith Pavona, a concerned citizen, followed the Jeep and flashed her headlights in order to get the drivеr‘s attention, but the driver of the Jeep did not respond. Another concerned citizen pulled up beside the Jeep on the passenger‘s side and appeared to say something, but the Jeep kept advancing without turning on its headlights. Ms. Pavona then called 911.
{¶3} Officer Justin Herstich responded to the 911 call and stopped the Jeep at approximately 9:30 p.m. in Fairlawn. Officer Mark Schlegel also arrived in a separate car as back-up. The Officers learned that Ms. Anderson was driving the Jeep which was owned by her daughter, Angela Anderson, who was in the front passenger‘s seat.1 Officer Herstich asked Ms. Anderson about her erratic driving and whether she had consumed any alcoholic beverages, illicit drugs or prescribed medication. Ms. Anderson admitted to taking OxyContin and Xanax earlier that day. Officer Herstich then had Ms. Anderson perform three field sobriety tests, including the horizontal gaze nystagmus, one-legged stand, and walk-and-turn. Upon failing all three tests, Ms. Anderson was placed under arrest.
{¶4} Prior to having the Jeep towed, Officer Schlegel took an inventory of the contents of the vehicle. In doing so, he found several types of prescription medication inside a blue bag in Ms. Anderson‘s purse, as well as additional loose pills in the bottom of her purse. The pill bottles inside of the blue bag had no legible markings on them with regard to patient name, date, or doctor information. Offiсer Schlegel testified that Ms. Anderson admitted that the purse and its contents belonged to her. Further, because Ms. Anderson claimed that she had prescriptions for the pills found in her purse, the police allowed her three months tо produce the prescriptions before charging her with possession. The record indicates that Ms. Anderson failed to produce any prescriptions.
{¶5} Ms. Anderson was indicted for aggravated possession of drugs, in violation of
{¶6} The matter proceeded to trial and the jury issued a guilty verdict on the charges of aggravated possession of drugs and operating under the influence of alcohol or drugs. Additionally, the trial court found Ms. Anderson guilty of the traffic offenses.
{¶7} Ms. Anderson was sentenced to twenty-four months of community control, a suspended driver‘s license for a period of one-year, retroactive to May 31, 2012, a three-day driver interventiоn program, and fines in the amount of $425.00.
{¶8} Ms. Anderson appealed, setting forth one assignment of error for our consideration.
II.
ASSIGNMENT OF ERROR
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHICH SEVERELY DISADVANTAGED HIS CLIENT AND ADVERSELY IMPACTED THE OUTCOME OF THE TRIAL AND BUT FOR HIS POOR PERFORMANCE [MS. ANDERSON] WOULD NOT HAVE BEEN CONVICTED.
{¶9} In her sole assignment of error, Ms. Anderson argues that her trial counsel was ineffective in the following ways: (1) failing to subpoena pharmacy records for Ms. Anderson and her daughter, Angela Anderson, prior to trial, (2) failing to subpoena a pharmacist to authenticate prescription records at trial, (3) failing to adequately cross-examine Officers Herstich and Schlegel, and (4) failing to file a written motion for a new trial based upon newly discovered evidence.
{¶10} To prevail on a claim of ineffective assistance of counsel, Ms. Anderson must show (1) that cоunsel‘s performance was deficient to the extent that “counsel was not
{¶11} Here, Ms. Anderson first asserts that trial counsel should hаve subpoenaed pharmacy records for both herself and her daughter, Angela Anderson, in order to show that valid prescriptions existed for all medications found in the vehicle. However, this argument is pure speculation bеcause it presupposes that these prescriptions actually existed at the time of Ms. Anderson‘s arrest. “Thus, anything that would support such an assertion would necessarily have to come from outside the record and could not be considered in this appeal.” State v. Brooks, 9th Dist. No. 26437, 26352, 2013-Ohio-2169, ¶ 19, citing State v. Garfield, 9th Dist. No. 09CA009741, 2011-Ohio-2606, ¶ 59. As such, we cannot say that Ms. Anderson‘s trial counsel performed deficiently in this regard.
{¶12} Next, Ms. Anderson asserts that trial counsel should have subpoenaed a pharmacist to authenticatе printouts of her prescriptions that he attempted to submit into evidence at trial. Again, we can only presuppose what a witness may have said if he or she were called to testify about Ms. Anderson‘s prescriptions at the time of her arrest. However, as stated
{¶13} Ms. Anderson also asserts that trial counsel failed to adequately cross-examine Officers Herstich and Schlegel regarding the location of the drugs in the vehicle. First, she argues that, although Officer Herstich testified about the location of the drugs, he was not the officer who searched the purse, and his testimony was inappropriate hearsay. Second, she argues that there was a discrepancy between the police report and Officer Schlegel‘s testimony regarding the location of the drugs, and trial counsel only “briefly” questioned Officer Schlegel about this alleged discrepancy. However, the State elicited testimony indicating that Officers Herstich and Schlegel were standing next to each other when Officer Schlegel searched Ms. Anderson‘s purse, and that Officer Schlegel showed Officer Herstich the contents of the purse. As such, Officer Herstich testified from personal knowledge that the drugs were found in Ms. Anderson‘s purse. Further, Officer Schlegel clarified, both on direct and cross-examination that, although the policе report states that the pills were found in a “blue bag in car,” the blue bag was actually inside of Ms. Anderson‘s purse, which was inside of the car. Trial counsel cross-examined Officer Schlegel on this issue as follows:
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Q. Is this the report that you generated?
A. Yes.
Q. All right. And would you take a look at that paragraph.
A. Yes.
Q. Is it still your testimony that you reсovered a blue bag from the purse, or was it somewhere else in the vehicle?
A. No. It was in the purse.
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Q. [I]sn‘t it true [the police report] also states that the blue bag was found in the vehicle? It doesn‘t say it was in the purse?
A. It said [the blue bag] was in the car, and the purse obviously is in the car.
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Q. [T]he blue bag and the pill bottles, you say, are found in the purse; but they are treated differently on the report and on the exhibits?
A. I just put them: In blue bag in car, blue bag in purse. I didn‘t know at the time if I was going to be finding any other evidence. I had made it to the driver‘s portion of the vehicle. But the blue bag was inside the purse.
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(Emphasis added.) It is clear that trial counsel questioned Officer Schlegel on the issue of the discrepancy and his answer did not change: the pills were found in a blue bag inside of Ms. Anderson‘s purse. We presume that trial counsel‘s questiоning of the Officers is based upon his sound trial strategy, and, as such, we cannot say that his performance was deficient. See Strickland at 689.
{¶14} Finally, Ms. Anderson asserts that, based on newly discovered evidence, trial counsel should have made a rеquest in writing for a new trial. The record indicates that at the close of trial, Ms. Anderson‘s counsel was handed a copy of a prescription allegedly matching
Counsel, you will need to file a written motion for new trial, keeping in mind that the standards for the granting of a new trial will have something to do with the nature of the investigation that has been done prior to trial, and not only whether the evidence was, quote/unquote, “newly discovered,” but would have been discoverable through normal pretrial efforts.
Once again, the prescription in question is dehors the record and cannot be considered in this аppeal. See Brooks at ¶ 20. Notwithstanding the foregoing, it is impossible to know whether after further examination, trial counsel might have realized that this prescription could have been obtained through normal discovery efforts prior to triаl.
{¶15} Accordingly, because we cannot conclude that trial counsel‘s performance was deficient, Ms. Anderson‘s assignment of error is overruled.
III.
{¶16} In overruling Ms. Anderson‘s sole assignment of еrror, the judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this jоurnal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period fоr review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
HENSAL, J.
CONCUR.
APPEARANCES:
KAREN H. BROUSE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.