State v. Harlow

[Cite as State v. Harlow, 2014-Ohio-864.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY

STATE OF OHIO, : Case No. 13CA29
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
JESSICA R. HARLOW, :
: RELEASED: 2/26/14
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:

Mary Elaine Hall, Cleveland, Ohio, for appellant.

Paul G. Betram III, Marietta City Law Director, and Catherine Ingram Reynolds, Marietta
City Assistant Law Director, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

{¶1} After being convicted of operating a vehicle under the influence upon her

plea of no contest, Jessica Harlow appeals the denial of her motion to suppress. We

construe both her first two assignments of error as challenging the trial court’s factual

basis for finding that the stop of her vehicle satisfies constitutional standards.

Characterizing her first and second assignments of error respectively as challenges to

the sufficiency and weight of the evidence, she argues the state failed to present

evidence to support a finding that the trooper had either probable cause or a reasonable

articulable suspicion for stopping her car. Specifically, she contends the court should

not have admitted and relied upon a DVD, which captured her erratic driving. However,

because defense counsel stipulated to its admission, Harlow has forfeited any argument

on appeal that the DVD depicting her driving was inadmissible. And to the extent that

she argues that the trooper unlawfully followed her car before stopping her, she cites no
Washington App. No. 13CA29 2

law to support this assertion and we are unaware of any basis for such a proposition. In

fact, the trooper's act of following her car on public roadway does not implicate any

Fourth Amendment protection. So we overrule her first two assignments of error.

{¶2} In her third assignment of error Harlow asserts that her trial counsel was

ineffective for stipulating to the DVD’s admission at the suppression hearing and failing

to brief the issue. However, Harlow has failed to overcome the presumption that

counsel’s stipulation was a sound trial strategy, as the record shows that the defense

believed the DVD contradicted the trooper’s testimony. Thus, we cannot say that

counsel’s performance was deficient.

{¶3} Finally, in her fourth assignment of error Harlow argues that the trial court

abused its discretion by denying her limited driving privileges. However, the record

shows that Harlow’s license was suspended prior to her conviction due to an

administrative license suspension (ALS). Then after her conviction her ALS was

terminated and a judicial suspension took its place as part of her sentence. Because

Harlow only petitioned the court for limited driving privileges before her conviction under

the ALS, her argument concerning her suspension under the conviction is not properly

before us.

I. FACTS

{¶4} In the early morning hours, Trooper Stephen Rogers of the Ohio State

Highway Patrol observed Harlow’s vehicle turn onto State Route 83, in Washington

County. After Trooper Rogers pulled behind the vehicle and began to follow it, he

observed the vehicle cross over the white edge line on the road several times. At one

point, the vehicle actually drifted off the road and came in contact with the gravel. When
Washington App. No. 13CA29 3

Trooper Rogers initiated a traffic stop, he noticed that Harlow’s eyes were red and

glassy, and there was an odor of alcohol coming from inside the automobile. Harlow

denied drinking but following a series of field sobriety tests, the trooper arrested Harlow

and charged her with OVI and failure to drive in marked lanes. Thereafter, Harlow

admitted to having three drinks, but refused to take a breath test.

{¶5} After pleading not guilty Harlow filed a motion to suppress evidence

claiming that Trooper Rogers lacked probable cause to stop her vehicle. Trooper

Rogers testified at a hearing on the motion and the parties also stipulated to the

admission of a DVD recording of the traffic stop from the trooper’s dashboard camera.

The trial court found the trooper had reasonable suspicion to stop Harlow’s vehicle

and denied the motion.

{¶6} After Harlow entered a plea of no contest to the OVI charge, the trial court

found her guilty. The court imposed a sentence of a one year license suspension, in

addition to suspended jail time, fines and costs. This appeal followed.

II. ASSIGNMENTS OF ERROR

{¶7} Harlow raises four assignments of error for our review:

1. THE TRIAL COURT’S LEGAL CONCLUSIONS THAT THE OHIO
STATE PATROLMAN HAD EITHER PROBABLE CAUSE OR
REASONABLE SUSPICION OR OBSERVED THE COMMISSION OF A
MINOR TRAFFIC VIOLATION ARE NOT SUPPORTED BY THE
SUFFICIENCY OF THE EVIDENCE (1) PATROLMAN DID NOT
OBSERVE THE DEFENDANT-APPELLANT COMMIT ANY OFFENSE
UNTIL AFTER HE DECIDED TO TURN ONTO STATE ROUTE 83 AND
FOLLOW HER IN HOPE OF DISCOVERING A FUTURE CRIME; (2) THE
ASSISTANT LAW DIRECTOR DID NOT PRESENT ANY EXPERT
TESTIMONY TO SUBSTANTIATE THE ACCURACY OF THE DVD –
OTHER THAN HER OWN CONCLUSIONS THAT THE DEFENDANT-
APPELLANT VIOLTATED MARKED LANES, LEFT OF CENTER & EDGE
LINE VIOLATIONS.
Washington App. No. 13CA29 4

2.) THE TRIAL COURT’S LEGAL CONCLUSIONS THAT THE OHIO
STATE PATROLMAN HAD EITHER PROBABLE CAUSE OR
REASONABLE SUSPICION OR OBSERVED THE COMMISSION OF A
MINOR TRAFFIC VIOLATION ARE NOT SUPPROTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE (1) PATROLMAN DID NOT
OBSERVE THE DEFENDANT-APPELLANT COMMIT ANY OFFENSE
UNTIL AFTER HE DECIDED TO TURN ONTO STATE ROUTE 83 AND
FOLLOW HER IN HOPE OF DISCOVERING A FUTURE CRIME; (2) THE
ASSISTANT LAW DIRECTOR DID NOT PRESENT ANY EXPERT
TESTIMONY TO SUBSTANTIATE THE ACCURACY OF THE DVD –
OTHER THAN HER OWN CONCLUSIONS THAT THE DEFENDANT-
APPELLANT VIOLTATED MARKED LANES, LEFT OF CENTER & EDGE
LINE VIOLATIONS.

3.) THE DEFENDANT-APPELLANT’S PUBLIC DEFENDER IN THE
TRIAL COURT BELOW RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN SHE (1) FAILED TO BRIEF THE ISSUE OF
ADMISSIBILITY OF THE DVD WHEN GIVEN THE OPPORTUNITY BY
THE COURT AND (2) STIPULATED TO THE ADMISSIBILITY OF THE
DVD WITHOUT PLACING SPECIFIC EVIDENTIARY OBJECTIONS ON
THE RECORD.

4.) THE TRIAL COURT BELOW ABUSED ITS DISCRETION WHEN IT
FAILED TO GRANT THE DEFENDANT-APPELLANT’S PETITION FOR
[LIMITED] DRIVING PRIVILEGES PURSUANT TO R.C. 4510.021.

III. LAW AND ANALYSIS

A. Harlow’s Motion to Suppress

{¶8} On their face, Harlow’s first two assignments of error challenge the trial

court’s denial of her motion to suppress evidence. Appellate review of a motion to

suppress involves a mixed question of law and fact. State v. Roberts, 110 Ohio St.3d

71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. When considering a motion to suppress,

the trial court assumes the role of trier of fact and therefore is in the best position to

resolve factual questions and evaluate witness credibility. Id. As a result, appellate

courts “‘must accept the trial court’s findings of fact if they are supported by competent,

credible evidence.’” Id., quoting State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583
Washington App. No. 13CA29 5

(1982). Accepting these facts as true, the appellate court must then independently

decide whether the facts of the case satisfy the applicable legal standard. Roberts at ¶

100.

{¶9} Harlow’s first two assignments of error are confusing and difficult to

construe because each assigned error is inconsistent with its respective argument and

the relief requested. In her argument under her first assignment of error, Harlow argues

“even though the public defender stipulated to the admission of the DVD, its admission

alone, without laying a proper foundation and without authentication under Evid.R. 901,

et seq. and Evid.R. 1001, et seq. the DVD is still insufficient under the totality of the

circumstances, for the trier of fact (the trial judge) to conclude the DVD was adequate to

accept her ‘no contest plea’ to OVI based upon the traffic stop.” She contends that we

must find that “(1) a rational trier of fact could conclude that the DVD did not contain all

the essential elements of offense beyond a reasonable doubt; and (2) the state’s

evidence, even if believed, does not support the ‘no contest plea’ to the OVI.” In the

argument under her second assignment of error she also requests that her conviction

be reversed under a manifest weight of the evidence standard because the “court below

clearly lost its way “ as indicated by the fact “it had to review the DVD five or six times.”

{¶10} This approach is confusing at best. Harlow’s first two assignments of error

challenge the trial court’s denial of her motion to suppress, not her conviction. Appellate

courts review assignments of error-we sustain or overrule only assignments of error and

not mere arguments. See State v. Gwinn, 196 Ohio App.3d 296, 2011-Ohio-5457, 963

N.E.2d 212, ¶ 26 (4th Dist.); Dunina v. Stemple, 2nd Dist. Miami No. 2007 CA 9, 2007-

Ohio-4719, ¶ 4. Accordingly, we will not address the arguments that challenge Harlow's
Washington App. No. 13CA29 6

conviction because she did not assign them as error. See Coffman v. Mansfield Corr.

Inst., 10th Dist. Franklin No. 09AP-447, 2009-Ohio-5859, ¶ 18.

{¶11} At the hearing on the motion, the state was not required to prove all the

essential elements of the charged offense beyond a reasonable doubt. Rather, the trial

court had only to decide whether the stop of her vehicle was lawful as challenged in her

motion. Her argument challenging the admission of the DVD at the suppression hearing

is misplaced because Harlow’s trial counsel stipulated to the DVD’s admissibility, i.e.

that it accurately represented what the trooper saw on the night in question. By

stipulating to its admissibility and content, Harlow has forfeited any argument on appeal

that the DVD was inadmissible. See State v. Keck, 127 Ohio St.3d 550, 2013-Ohio-

5160, 1 N.E.2d 403, ¶ 17 (holding that defense counsel’s stipulation to the admissibility

and content of a scientific report waived any argument that the report was inadmissible

and violated defendant’s Sixth Amendment right to confrontation); Hileman v. Kramer,

2nd Dist. Montgomery No. 15066, 1995 WL 765959, *8 (Dec. 29, 1995) (holding a

defendant “may not stipulate to the admissibility of certain records at trial and then

argue on appeal that those same records were admitted erroneously”). Her argument

also lacks merit because “the Rules of Evidence do not apply to suppression hearings.”

State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17.

{¶12} Harlow further claims that the trooper “unlawfully” followed her car “in the

hope of discovering a future crime,” but cites no law to support this vague assertion. In

fact, the law is clear that mere surveillance in public places does not implicate the

protection of the Fourth Amendment’s prohibition against unreasonable searches and

seizures. See Katz, Ohio Arrest Search and Seizure, Sections 14:4-14:5 (2013).
Washington App. No. 13CA29 7

{¶13} The only other contention Harlow advances related to the suppression

hearing is that “the trial court below clearly lost its way because it had to review the

DVD five or six times; the trial court was confused about what it saw.” This argument is

unsupported by legal authority and amounts to mere supposition. The fact that the

court reviewed the DVD multiple times would just as easily support a conclusion the

court took the time to get it right.

{¶14} Thus the trial court was justified in relying upon the DVD and the trooper's

testimony to conclude the trooper had a reasonable articulable suspicion (and probable

cause) to believe Harlow had failed to drive within the marked lanes. See State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 16, 24. As a result,

the stop satisfied the Fourth Amendment. We overrule Harlow’s first and second

assignments of error.

B. Ineffective Assistance of Counsel

{¶15} In her third assignment of error, Harlow argues that her trial counsel was

ineffective by stipulating to the DVD’s admission and failing to brief the issue.

{¶16} To prevail on an ineffective assistance of counsel claim, the appellant

must show 1.) counsel’s performance was deficient and 2.) the deficient performance

prejudiced the defense so as to deprive the accused of a fair trial. State v. Drummond,

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish

deficient performance, an appellant must show that counsel’s performance fell below an

objective level of reasonable representation. State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. To establish prejudice, an appellant must show
Washington App. No. 13CA29 8

a reasonable probability exists that, but for the alleged errors, the result of the

proceeding would have been different. Id. “A defendant’s failure to establish one prong

of the Strickland test negates a court’s need to consider the other.” State v. Madrigal, 87

Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).

{¶17} In reviewing the claim of ineffective assistance, we are admonished to

indulge a “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered

sound trial strategy.’” Strickland at 689.

{¶18} Here, Harlow has failed to satisfy either prong of the Strickland test. She

has not shown defense counsel’s performance fell below an objective level of

reasonable representation. To the contrary, the record supports the conclusion that

counsel’s stipulation was part of her strategy as she believed the DVD contradicted the

trooper’s testimony. At the suppression hearing, defense counsel argued that after

watching the DVD:

I don’t see it. I don’t see [Harlow] going over the fog line. I don’t see her
running off the road. I do see her kicking up gravel and it appears to
happen right around that Waterford Tank Plant which there’s dirt all over
the road. I just don’t see any violations. [Harlow] puts on her blinker. She
pulls over appropriately. I don’t believe there was any reasonable
suspicion or probable cause for the stop.

Although Harlow contends “there was a reasonable probability that if her public

defender had briefed the issue of admissibility of the DVD and specific evidentiary

objections to it, the results of the Suppression Hearing would have had a different

outcome for her,” she fails to offer any reason why the DVD was inadmissible or

specify any basis upon which counsel may have objected. Nevertheless, there is
Washington App. No. 13CA29 9

nothing in the record to suggest that the DVD did not accurately reflect the events on

the morning in question. Because it is well established that decisions regarding

stipulations primarily involve trial strategy, we cannot say that counsel’s stipulation

resulted in a deficient performance. See State v. Rippy, 10th Dist. Franklin No. 08AP-

248, 2008-Ohio-6680, ¶ 16.

{¶19} Harlow has also failed to show that she was prejudiced by the DVD’s

admission. Trooper Rogers testified at the suppression hearing about Harlow’s driving

on the night in question and the events recorded on the DVD. He testified that he

observed her vehicle cross over the white edge line “several times” and on one

occasion actually saw it come in contact with the gravel on the side of the road. Thus,

even without the DVD Harlow cannot show that the result of the hearing would have

been different. In fact, without the DVD the court would have had little potential for

finding the trooper’s testimony unworthy of belief.

{¶20} We also find it confusing that Harlow asserts in her reply brief that her

public defender rendered ineffective assistance of counsel because “[b]ut for her

lawyer’s failure to provide expert testimony to refute the results of the breathalyzer test,

regarding the weight to be given this evidence, she would have been found innocent.”

Even if we overlook the fact that an appellant may not use a reply brief to raise new

assignments of error or issues, Blair v. Cincinnati Ins. Co., 163 Ohio App.3d 81, 2005-

Ohio-4323, 836 N.E.2d 607, ¶ 6 (4th Dist.), Harlow refused to submit to a breathalyzer

test and this argument is inconsistent with the facts of the case. Therefore, we overrule

Harlow’s third assignment of error.

C. Driving Privileges
Washington App. No. 13CA29 10

{¶21} Finally in her fourth assignment of error Harlow contends that the trial

court abused its discretion by denying her limited driving privileges. On the date of her

arrest Trooper Rogers placed Harlow under an ALS as a result of her refusal to submit

to a breathalyzer test. “An ALS is a civil proceeding separate from any criminal

offense.” State v. McPhillamy, 6th Dist. Erie No. E–11–071, 2012-Ohio-3612, ¶ 8.

Because “the administrative license suspension is effective at the time of the arrest” it

“operates independently of any penalties resulting from the criminal charge.” State v.

Wisby, 1st Dist. Hamilton Nos. C-020758, C-020759, 2003-Ohio-5834, ¶ 15. “Both an

ALS and a criminal prosecution may result from driving under the influence of drugs or

alcohol and refusing to take a chemical test.” State v. Hoover, 123 Ohio St.3d 418,

2009-Ohio-4993, 916 N.E.2d 1056, ¶ 25. “After a DUI conviction, however, the ALS

terminates, and the license suspension becomes part of the DUI sentence.” Id. This is

also reflected in R.C. 4511.191(B)(2), which states:

The registrar shall terminate a suspension of the driver’s or commercial
driver's license or permit of a resident * * * imposed pursuant to division
(B)(1) of this section upon receipt of notice * * * that the person has been
convicted after entering a plea of no contest to, operating a vehicle in
violation of section 4511.19 of the Revised Code * * * if the offense for
which the conviction is had or the plea is entered arose from the same
incident that led to the suspension or denial.

{¶22} Although in her “STATEMENT OF THE CASE,” Harlow contends that she

filed a petition for driving privileges after the court imposed sentence, the record actually

shows that she only filed motions for driving privileges prior to pleading no contest. The

trial court denied both petitions in separate entries captioned “PRETRIAL DRIVING

RIGHTS.” The trial court’s judgment entry for Harlow’s OVI conviction, from which she

appeals, sentences her to “1year Suspension of all the Defendant’s Ohio driving rights
Washington App. No. 13CA29 11

and privileges: Any occupational driving privileges granted under the ALS are

terminated.”

{¶23} Thus, Harlow’s ALS terminated when she was convicted of OVI, as did

any privileges. And because Harlow did not petition the court for driving privileges after

her conviction, her argument concerning her suspension for her conviction is not

properly before the court. We reject her fourth assignment of error.

IV. CONCLUSION

{¶24} In conclusion, we overrule Harlow’s four assignments of error and affirm

the judgment of the trial court.

JUDGMENT AFFIRMED.
Washington App. No. 13CA29 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Marietta
Municipal Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.