STATE OF OHIO, Appellee, - vs - MATTHEW D. JOZWIAK, Appellant.
CASE NO. CA2019-09-091
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
7/13/2020
[Cite as State v. Jozwiak, 2020-Ohio-3694.]
RINGLAND, J.
David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
Thomas G. Eagle Co., L.P.A., Thomas G. Eagle, 3400 N. State Route 741, Lebanon, Ohio 45036, for appellant
RINGLAND, J.
{¶1} Appellant, Matthew D. Jozwiak, appeals from his conviction and sentence in the Warren County Court of Common Pleas for operating a vehicle while under the influence of alcohol or drug of abuse (“OVI“). For the reasons discussed below, we affirm his conviction and sentence.
{¶3} At that point, the officer approached the vehicle on foot. The officer identified appellant to be the operator and sole occupant of the vehicle. The officer requested appellant‘s driver‘s license and proof of insurance and engaged in a series of questions with appellant. Appellant produced the insurance documents and answered the questions but did not provide his driver‘s license until the officer again requested that document. During this encounter, the officer noticed a slight odor of an alcoholic beverage emanating from the vehicle. The officer took the documents and returned to his vehicle to process the information. After verifying appellant‘s identification, the officer learned that appellant‘s driving privileges in Ohio had been suspended and that he had prior OVI convictions. The officer returned and told appellant to step out of his vehicle and walk back to the police cruiser.
{¶4} The officer asked appellant another series of questions, inquiring whether appellant had any prior OVIs or if he had consumed alcohol recently. Appellant denied having any prior OVI convictions or drinking alcohol. While speaking with appellant, the officer detected a strong odor of an alcoholic beverage coming from appellant‘s person, and noticed that appellant exhibited glassy eyes, slurred speech, and had difficulty responding to the questions indicating divided attention issues. The officer then requested appellant
{¶5} At this point, other law enforcement personnel arrived to aid the officer. The officer asked appellant to complete three field sobriety tests (“FSTs“): the horizontal gaze nystagmus (“HGN“), the walk-and-turn, and the one-leg stand tests. After administering these tests, the officer determined that appellant was appreciably impaired and placed appellant under arrest. At the police station, the officer requested that appellant submit to a chemical breath test and notified appellant about the consequences of refusal. Appellant refused to take the test.
{¶6} Based on the foregoing events, the Warren County Grand Jury indicted appellant on two counts of OVI, the first count in violation of
{¶7} The matter proceeded to a jury trial in July 2019.1 At trial, the state called one witness, the arresting officer, to testify. In addition, the state admitted into evidence, inter alia, the video recording tаken from the officer‘s patrol vehicle, the BMV form 2255 read to appellant before he refused the chemical test, and five judgment of conviction entries for the prior OVI convictions. The jury found appellant guilty of both counts and both of the specifications.
{¶9} Appellant now appeals raising three assignments of error for review.
{¶10} Assignment of Error No. 1:
{¶11} THE TRIAL COURT ERRED IN CONVICTING APPELLANT.
{¶12} In his first assignment of error, appellant argues that his conviction should be reversed because he received ineffective assistance of counsel. In support, appellant presents several issues for review: trial counsel‘s failure to file a motion to suppress the traffic stop and results of the field sobriety tests; counsel‘s failure to object to multiple evidentiary matters; and, counsel‘s failure to object to the prosecutor‘s comments on appellant‘s silence. Appellant further argues that if the alleged errors are not individually reversible, this court should reverse his conviction based on cumulative error. Alternatively, appellant argues that some of the alleged errors amounted to plain error pursuant to
Standard of Review
{¶13} A defendant has the right to effective assistance of counsel in a criminal proceeding pursuant to the
{¶14} As to appellant‘s alternative argument, to constitute plain error there must be an obvious deviation from a legal rule that affected appellant‘s substantial rights, that is, the error must have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Notice of plain error must be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
Motion to Suppress
{¶15} Appellant argues that he received ineffective assistance because his trial counsel did not file a pretrial motion to suppress evidence from the traffic stop and the results of the FSTs. He contends that the officer did not have a constitutionally valid basis to initiate the traffic stop and the state failed to demonstrate that the police officer conducted the FSTs in substantial compliance with acceptable testing standards as required by
{¶17} Initially, appellant claims his motion to suppress would have succeeded because the police officer lacked a sufficient basis to initiate the traffic stop. The
{¶18} Here, the officer had probable cause to believe appellant committed a traffic violation. The officer testified that when he first encountered appellant, appellant was stopped at an intersection waiting for the traffic light to change. While appellant was stopped, the officer observed that appellant did not have his turn signal illuminated or otherwise provide a statutorily compliant signal indicating an intent to turn. When the traffic control device permitted appellаnt to continue through the intersection, appellant instead made a right turn onto the cross-street. Pursuant to
{¶19} Next, appellant contends that a motion to suppress would have been successful because the state failed to demonstrate the FSTs were substantially compliant with a testing standard in effect when the tests were conducted.
{¶20} This court has previously discussed in detail the process required to perform the FSTs according to the NHTSA manual. For instance, we have explainеd that in order
a police officer should instruct the suspect that [he is] going to check the suspect‘s eyes, that the suspect should keep [his] head still and follow the stimulus with [his] eyes, and that the suspect should do so until told to stop. After these initial instructions are provided, the officer is instructed to position the stimulus approximately 12 to 15 inches from the suspect‘s nose and slightly above eye level. The officer is then told to check the suspect‘s pupils to determine if they are of equal size, the suspect‘s ability to track the stimulus, and whether the suspect‘s tracking is smooth. The officer is then to check the suspect for nystagmus at maximum deviation and for onset of nystagmus prior to 45 degrees. The manual instructs the officer tо repeat each of the three portions of the HGN test.
In addition, the NHTSA guidelines list certain approximate and minimum time requirements for the various portions of the test. For instance, when checking for smooth pursuit, the time to complete the tracking of one eye should take approximately four seconds. When checking for distinct nystagmus at maximum deviation, the examiner must hold the stimulus at maximum deviation for a minimum of four seconds. When checking for the onset of nystagmus prior to 45 degrees, the officer should move the stimulus from the suspect‘s eye to his shoulder at an approximate speed of four seconds.
(Internal quotations and citations omitted.) State v. Clark, 12th Dist. Brown No. CA2009-10-039, 2010-Ohio-4567, ¶ 22-23; accord State v. Bresson, 51 Ohio St.3d 123, 125 (1990), fn. 4. This court has similarly detailed the NHTSA standards for the walk-and-turn and the one-leg stand tests. State v. Deluca, 12th Dist. Butler No. CA2016-03-055, 2017-Ohiо-1235, ¶ 12-15. Moreover, the Ohio Supreme Court has explained, “the only requirement prior to admission [of the HGN test] is the officer‘s knowledge of the test, his training, and his ability to interpret his observations.” Bresson at 129; accord State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 27 (the foundation required for admitting the HGN test is the administering officer‘s training, the ability to administer the test, and the actual technique used).
{¶21} At trial, the officer testified that he received training on how to perform the
{¶22} Moreover, appellant‘s ineffective assistance claim fails because appellant cannot demonstrate that the failure to file a motion to suppress prejudiced him. The officer testified that prior to the administration of the FSTs, he observed several indicia of impairment, such as appellant‘s difficulty maintaining a straight course while driving, appellant‘s slurred and broken speech, a strong odor of an alcoholic beverage emanating from appellant, and appellant‘s divided attention issues when responding to questions. Again, even if the results of an FST have been excluded, “a law enforcement officer may
Evidentiary Issues
{¶23} Additionally, appellant argues that his trial counsel provided ineffective assistance of counsel by failing to object to the admission of evidence that he contends was inadmissible. Specifically, appellant argues that his trial counsel erred by not objecting to: the officer‘s lay opinion on “studies,” the officer‘s testimony regarding appellant‘s credibility in answering questions, or the use of the PBT device. Appellant further argues that it was plain error to allow evidence of the PBT.
{¶24} Contrary to his argument that counsel did not object to testimony of the “studies,” the record shows that appellant‘s trial counsel contemporaneously objected to this testimony and the court ruled on the objections. Therefore, appellant cannot establish that his trial counsel‘s performance was deficient on this issue.
{¶26} Likewise, the officer‘s testimony regarding the administration of the PBT was not prejudicial. Ohio courts have held that both the results of a PBT and the refusal to take the PBT are inadmissible at trial. In re A.M.I., 12th Dist. Warren No. CA2014-07-095, 2015-Ohio-367, ¶ 16-17; State v. Janick, 11th Dist. Ashtabula No. 2007-A-0070, 2008-Ohio-2133, ¶ 28; and State v. Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, ¶ 40 (6th Dist.). However, evidence of a refusal to submit to chеmical breath test that has been approved by the Ohio Department of Health and listed in
{¶27} Appellant‘s claims regarding ineffective assistance of counsel and plain error for the forgoing evidentiary issues are not well taken.
Stipulated Evidence
{¶28} Appellant argues that his counsel provided ineffective assistance by referring to the prior convictions in his closing argument, failing to object to the officer‘s testimony about prior OVI convictions, and failing to object to the prosecutor‘s comments on those convictions, all despite stipulating that his prior criminal record satisfied an essential element of the OVI offenses. In support, appellant relies on Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644 (1997), and State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, to argue that the state improperly exceeded the scope of appellant‘s stipulation to his prior convictions. Appellant contends that the emphasis on these prior convictions created unfair prejudice in violation of
{¶29} We find that Old Chief and Creech are distinguishable from the present case.
{¶30} Conversely, the relevant statutes for the cause sub judice—
{¶31} In the cause sub judice, the state had to prove that appellant had been convicted of a prior felony OVI as an element of the underlying OVI offense and that he had five prior OVI convictions to prove the specifications in the indictment. Besides testimony of the prior convictions and admission of certified judgment entries, the state did not otherwise discuss the context or facts of the prior convictions. Because there was no explanation of the nature of the previous OVIs, the jury was unlikely to ascribe unfair prejudice. Moreover, the trial court instructed the jury not to consider the prior convictions as evidenсe of appellant‘s character or that he acted in conformity with that character. A trial court limits potential prejudice by providing limiting instructions. State v. Sturgill, 12th Dist. Clermont Nos. CA2013-01-002 and CA2013-01-003, 2013-Ohio-4648, ¶ 19, overruled on other grounds, State v. Burkhead, 12th Dist. Butler No. CA2014-02-028, 2015-Ohio-1085, ¶ 13. Therefore, there was no violation of
{¶32} Moreover, appellant‘s argument that it was deficient for his counsel to
The Right to Remain Silent
{¶33} Appellant further argues that he received ineffective assistance of counsel and the trial court committed plain error by allowing the state to “elicit evidence and argue and comment on the fact that Appellant did not answer questions, but remained silent, when questioned by police about his drinking or defenses, and did not present a defense” which violated his
{¶34} The
{¶35} Contrary to appellant‘s argument, the record reveals that appellant did not remain silent during the roadside investigation. Appellant answered the officer‘s questions by denying that he had consumed alcohol or had any prior OVI convictions. While we note that the officer testified appellant “said nothing” in response to his questions, this was not a declaration by the officer that appellant remained silent in the face of questioning, but merely a recitation of appellant‘s response to the questions. Appellant told the officer that he had “nothing” to drink. This is supported by the video recording from the police vehiсle of the encounter. Therefore, appellant‘s argument that the state used prearrest silence lacks merit.
the prosecutor is not precluded from challenging the weight of the evidence offered in support of an exculpatory theory presented by the defense. Neither must the state, in order to satisfy its own burden of proof, disprove every speculative set of possibly exculpatory circumstances a defendant can suggest, nor refrain from arguing the defendant‘s failure to provide evidence to support proffered theories of excuse or innocence.
(Citations omitted.) State v. Collins, 89 Ohio St.3d 524, 528 (2000). In his closing argument, the prosecutor pointed out contradictions between appellant‘s answers and the other evidence, such as appellant‘s denial that he consumed alcohol even though the officer detected a strong odor of an alcoholic beverage about him. Then, in the rebuttal argument, the prosecutor argued there was no evidence to support defense counsel‘s alternative explanations for appellant‘s behavior that morning. Consequently, there was no error here, much less plain error, and an objection would have been meritless. Counsel is not deficient when it forgoes raising a meritless issue. State v. English, 12th Dist. Butler No. CA2013-03-048, 2014-Ohio-441, ¶ 41.
Cumulative Error
{¶37} Finally, appellant аrgues that even if the individual errors did not merit a reversal of his conviction, this court should consider whether the claimed errors cumulatively deprived appellant of a fair trial. Having determined that there were no errors, harmless or otherwise, we find that appellant received a fair trial. Therefore, the cumulative error doctrine does not apply. State v. Barton, 12th Dist. Warren No. CA2005-03-036, 2007-Ohio-1099, ¶ 185-186.
{¶38} Based on the foregoing, appellant‘s first assignment of error is overruled.
{¶39} Assignment of Error No. 2:
{¶40} THE TRIAL COURT ERRED IN SENTENCING APPELLANT.
{¶42}
{¶43} Furthermore, appellant was provided an opportunity to be heard regarding the fine at the sentencing hearing. Appellant, through his counsel, admitted that he had sold his vehicle some time prior to the sentencing hearing. Therefore, the trial court found that
{¶44} Next appellant argues that the trial court erred because it did not engage in a proportionality analysis. Appellant‘s reliance on any proportionality analysis pursuant to the criminal forfeiture provisions in
{¶45} To the extent that appellant argues that the fine in lieu of the forfeiture was an “excessive fine” in violation of his rights under the
{¶46} The trial court did not commit plain error by imposing the fine in lieu of the forfeiture. At the sentencing hearing, the trial court discussed the reasons for its sentence. The court‘s rationale demonstrates the court engaged in a proportionality analysis. The court found that appellant had operated his vehicle while under a license suspension, had otherwise repeatedly driven while impaired in what the court described as a “pattern that is going to get somebody killed,” and appellant knowingly disposed of his vehicle to evade a forfeiture. Appellant has not explained why the trial court‘s rationale was improper or how the fine was constitutionally disproportionate to his offense. Consequently, the trial court did not commit plain error when it sentenced appellant.
{¶48} Assignment of Error No. 3:
{¶49} THE TRIAL COURT ERRED IN DENYING WITHOUT A HEARING APPELLANT‘S MOTION FOR NEW TRIAL.
{¶50} In his third assignment of error, appellant argues that the trial court erred by denying his motion for a new trial without holding a hearing on the matter or making findings of facts and conclusions of law.
{¶51} ”
{¶52} The trial court did not abuse its discretion by denying appеllant‘s motion for a new trial or deciding not to hold a hearing. Appellant did not assert that there was newly discovered evidence, did not request a hearing, and did not attach an affidavit to the motion. Instead, appellant argued that he should be granted a new trial because of ineffective assistance of counsel.
{¶53} This court has previously held that an ineffective assistance of counsel claim may be grounds for a new trial pursuant to
{¶55} Furthermore, the trial court did not err when it denied the
{¶56} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.