State v. Ruppen

[Cite as State v. Ruppen, 2012-Ohio-4234.]

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

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA22
:
vs. : Released: August 28, 2012
:
MELINDA A. RUPPEN, : DECISION AND JUDGMENT
: ENTRY
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Mark W. Evans, The Law Office of Mark W. Evans, Ltd., Cincinnati, Ohio,
for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and
Raymond E. Dugger, Washington County Assistant Prosecuting Attorney,
Marietta, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.:

{¶1} This is an appeal from a Washington County Common Pleas

Court judgment of conviction and sentence, which resulted from a jury

verdict finding Appellant, Melinda Ruppen, guilty of possession of drugs, a

fifth degree felony in violation of R.C. 2925.11(A) & (C)(4)(a). On appeal,

Appellant contends that 1) the trial court committed reversible error when it

admitted irrelevant and highly prejudicial testimonial and videotape

evidence of other acts, crimes or wrongs in violation of the Ohio Rules of
Washington App. No. 11CA22 2

Evidence; 2) Appellant’s conviction for possession of drugs is against the

manifest weight of the evidence as the greater weight of the evidence

indicates that Ms. Ruppen did not knowingly possess trace amounts of

cocaine residue; and 3) Appellant was denied her rights under the United

States and Ohio Constitutions to the effective assistance of counsel when her

trial counsel failed to timely file a motion to suppress, failed to object with

sufficient specificity to inadmissible evidence, and failed to timely object to

inadmissible testimony.

{¶2} With respect to Appellant’s first assignment of error, we find no

abuse of discretion or plain error in the admission of evidence of Appellant’s

false statements regarding her identity, or the admission of evidence

indicating her possession of other drugs and paraphernalia, in addition to

those related to the crime charged. Further, we find that any error by the

trial court related to the admission of statements made by Appellant

indicating she had prior incarcerations was harmless error. As such,

Appellant’s first assignment of error is overruled.

{¶3} With respect to Appellant’s second assignment of error, because

the evidence presented at trial would permit a rational trier of fact to find

beyond a reasonable doubt that Appellant knowingly possessed the cocaine

found in the vehicle, we cannot conclude that Appellant’s conviction was
Washington App. No. 11CA22 3

against the manifest weight of the evidence. As such, Appellant’s second

assignment of error is overruled. With respect to Appellant’s third

assignment of error, because Appellant has failed to demonstrate that the

outcome of the trial would have been different but for the alleged errors or

deficiencies of trial counsel, she has suffered no prejudice. Thus, we cannot

conclude that she received ineffective assistance of counsel and we therefore

overrule Appellant’s third and final assignment of error.

{¶4} Having found no merit to any of Appellant’s assignments of

error, the decision of the trial court is affirmed.

FACTS

{¶5} On December 16, 2010, Appellant, Melinda Ruppen, was

indicted for possession of drugs (cocaine), a fifth degree felony in violation

of R.C. 2925.11(A) & (C)(4)(a), stemming from a traffic stop in

Washington County. The State agrees with the facts, as set forth in

Appellant’s brief, which are essentially as follows:

{¶6} On July 31, 2010, Trooper Lehman stopped Appellant’s vehicle

for a safety restraint violation1 as it was traveling southbound on I-77 in

Washington County. Trooper Lehman asked Appellant for identification

and she responded that she did not have any, but then provided the trooper

1
We note that a review of the dashcam video indicates Appellant was initially stopped for an equipment
violation, specifically, failure to display a front license plate.
Washington App. No. 11CA22 4

with the name of Kristen Ruppen, and birth date in the year 1983.

Appellant’s male passenger also provided the trooper his name and birth

date.

{¶7} Trooper Lehman claimed Appellant was nervous, and that when

he went back to his patrol vehicle to look up the information provided to

him, he discovered Kristin Ruppen had a birth date of 1982. As a result, he

asked Appellant to come back to his vehicle and he placed her in the

backseat. When asked about her birth date again, Appellant stated it was

1982. Trooper Lehman then requested the assistance of a K-9 officer. After

obtaining a photo of Kristen Ruppen, Trooper Lehman confronted

Appellant, who then admitted that she lied about her identity, claiming to

have an outstanding seat belt ticket.

{¶8} After the K-9 officer, Trooper Hickey, arrived at the scene, the

troopers removed the male passenger from the vehicle, placed him in the

backseat of the patrol vehicle with Appellant, and then the K-9 dog sniffed

the exterior of Appellant’s vehicle. Trooper Hickey testified that the dog

indicated the presence of narcotics on the passenger and driver side of the

vehicle. Trooper Lehman then began a search of the vehicle, which yielded

a bag of marijuana, muscle relaxers that were not a controlled substance, a

cigarette pack with some filters in it, and a small, purple plastic container
Washington App. No. 11CA22 5

that contained cocaine residue, all of which were located in Appellant’s

purse. Trooper Lehman testified that when he took the container to

Appellant and asked her what it contained, she acknowledged it was hers

and admitted that it contained “crumbs of coke.” At trial, criminalist

Heather Sheskey testified that she tested the residue recovered from the

plastic container and that it tested positive for cocaine, which weighed less

than 0.1 gram.

{¶9} After hearing the evidence and viewing the dashcam video of the

entire stop and search,2 the jury found Appellant guilty of possession of

drugs, specifically, cocaine. Appellant was sentenced by journal entry dated

August 5, 2011, and it is from this entry that Appellant now brings her

timely appeal, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN
IT ADMITTED IRRELEVANT AND HIGHLY PREJUDICIAL
TESTIMONIAL AND VIDEOTAPE EVIDENCE OF OTHER
ACTS, CRIMES, OR WRONGS IN VIOLATION OF THE OHIO
RULES OF EVIDENCE.

2
As will be discussed more fully infra under Appellant’s first assignment of error, Appellant filed a motion
in limine on the morning of trial, requesting the court to exclude evidence that Appellant was in possession
of marijuana, paraphernalia, muscle relaxers, and lied to the officer about her identity, claiming that such
information had little probative value, was outweighed by its prejudicial effect, and was not relevant to
whether Appellant knowingly possessed cocaine. Appellant further moved to exclude the end of the video,
due to Appellant’s statements about a prior incarceration. The trial court denied the motion, but agreed to
give a limiting instruction instructing the jury only to consider those parts of the tape relevant to the
possession charge.
Washington App. No. 11CA22 6

II. MS. RUPPEN’S CONVICTION FOR POSSESSION OF DRUGS IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS
THE GREATER WEIGHT OF THE EVIDENCE INDICATES
THAT MS. RUPPEN DID NOT KNOWINGLY POSSESS TRACE
AMOUNTS OF COCAINE RESIDUE.

III. MS. RUPPEN WAS DENIED HER RIGHTS UNDER THE UNITED
STATES AND OHIO CONSTITUTIONS TO THE EFFECTIVE
ASSISTANCE OF COUNSELWHEN HER TRIAL COUNSEL
FAILED TO TIMELY FILE A MOTION TO SUPRESS, FAILED
TO OBJECT WITH SUFFICIENT SPECIFICITY TO
INADMISSIBLE EVIDENCE, AND FAILED TO TIMLY [SIC]
OBJECT TO INADMISSIBLE TESTIMONY.”

ASSIGNMENT OF ERROR I

{¶10} In her first assignment of error, Appellant contends that the trial

court committed reversible error when it admitted irrelevant and highly

prejudicial testimonial and videotape evidence of other acts, crimes, or

wrongs in violation of the Ohio Rules of Evidence. Specifically, Appellant

contends that portions of the dashcam video shown to the jury, as well as

testimony by the arresting officer, contained highly prejudicial evidence that

was irrelevant to the charged crime, possession of drugs.

{¶11} The record reveals that this issue was the subject of a motion in

limine filed the morning of trial, which was denied by the trial court, partly

based upon reasons of judicial economy due to the untimeliness of the filing,

and also based upon the trial court’s decision that the evidence at issue was

relevant and admissible. The State’s brief on appeal does not address the
Washington App. No. 11CA22 7

merits of Appellant’s assignment of error, other than to state that a ruling on

a motion in limine is not appealable. “A motion in limine is a prospective

order and makes no determination as to the ultimate admissibility of the

evidence.” Rowan v. City of Tallmadge, 9th Dist. No. 16876, 1995 WL

569114 (Sept. 27, 1995); citing Krosky v. Ohio Edison Co., 20 Ohio App.3d

10, 14, 484 N.E.2d 704 (1984). “ ‘An order in limine, therefore is a

preliminary ruling and is not a basis for error on appeal. This court’s

review, therefore, will not encompass an alleged violation of an in limini

order, but the ultimate ruling made during trial when the matter presented

itself for evidentiary ruling.’ ” Rowan; citing Regec v. Johnson, 9th Dist. No.

CA15838, 1993 WL 89700 (Mar. 31, 1993).

{¶12} Thus, we turn our attention to whether the trial court properly

admitted the evidence at issue during the trial of the matter, not whether it

properly ruled on the motion in limine. “A trial court has broad discretion in

the admission or exclusion of evidence, and so long as such discretion is

exercised in line with the rules of procedure and evidence, its judgment will

not be reversed absent a clear showing of an abuse of discretion with

attendant material prejudice to defendant.” State v. Green, 184 Ohio App.3d

406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14; citing State v. Powell, 177

Ohio App.3d 825, 2008-Ohio-4171, 896 N.E.2d 212, ¶ 33. Abuse of
Washington App. No. 11CA22 8

discretion is more than an error of law or judgment; rather, it implies that the

court's attitude is unreasonable, arbitrary or unconscionable. State v.

Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 762 N.E.2d 940; State v.

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When an appellate

court applies this standard, it must not substitute its judgment for that of the

trial court. State v. Jeffers, 4th Dist. No. 08CA7, 2009-Ohio-1672, ¶ 12; In

re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991); citing

Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

{¶13} Further, Evid. R. 403(A) provides that relevant evidence is not

admissible if its probative value is substantially outweighed by the danger of

unfair prejudice, of confusion of the issues, or of misleading the jury. “The

trial court has broad discretion in balancing the probative value against the

danger of unfair prejudice, and its determination will not be disturbed on

appeal absent a clear abuse of discretion.” State v. Reeves, 2nd Dist. No.

16987, 1999 WL 129469, * 7 (Mar. 12, 1999).

{¶14} Here, Appellant primarily challenges the admission of evidence

that 1) she lied to Trooper Lehman concerning her identity during the traffic

stop; 2) she admitted possession of unrelated drugs and drug paraphernalia;

and 3) she had twice been to jail before. Appellant argues that this evidence

1) was not relevant; 2) was inadmissible under the general prohibition of
Washington App. No. 11CA22 9

character evidence; and 3) that even if the evidence was relevant, the danger

of its prejudicial effect on the jury substantially outweighed its probative

value. Appellant further argues that the error in the admission of this

evidence cannot be considered harmless error, citing the “lack of other

substantial incriminating evidence,” and references the argument raised

under her second assignment of error, which contends her conviction was

against the manifest weight of the evidence.

EVIDENCE OF APPELLANT’S LIE TO TROOPER LEHMAN

CONCERNING HER IDENTITY

{¶15} Appellant claims that evidence she lied to Trooper Lehman

concerning her identity was not relevant to the commission of the crime for

which she was convicted, and that even if relevant, it should not have been

admitted because the danger of unfair prejudice outweighed its probative

value. This evidence was admitted in two ways, 1) trooper testimony, which

was not objected to during trial, and 2) the videotape evidence, which was

objected to by counsel. Because Appellant’s counsel failed to object to its

admission at trial via the testimony of the trooper, we review the admission

of this evidence under a plain error standard.

{¶16} Under Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the
Washington App. No. 11CA22 10

attention of the court .” For a reviewing court to find plain error, the

following three conditions must exist: 1) an error in the proceedings; 2) the

error must be plain, i.e., the error must be an “obvious” defect in the trial

proceedings; and 3) the error must have affected “substantial rights,” i.e., the

trial court's error must have affected the outcome of the trial. See, e.g., State

v. Noling, 98 Ohio St.3d 44, 56, 2002-Ohio-7044, 781 N.E.2d 88; State v.

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; State v.

Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001); State v. Hill, 92

Ohio St.3d 191, 200, 749 N.E.2d 274 (2001).

{¶17} Furthermore, the Supreme Court of Ohio has stated that

Crim.R. 52(B) is to be invoked “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v.

Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990); see, also, State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus

(1978). A reviewing court should consider noticing plain error only if the

error “ ‘ “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” ’ ” Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240;

quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770 (1993);

quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391 (1936).
Washington App. No. 11CA22 11

{¶18} Initially, we note that we agree with the trial court’s

determination that the admission of this evidence was relevant, as it

indicated to the jury that Appellant had something to hide, and it also

established the basis for the drug dog to be called and for the investigation to

continue. Thus, we reject Appellant’s argument that this evidence was not

relevant to the crime for which she was ultimately convicted.

{¶19} Further, in light of Appellant's identification of the recovered

drugs as “crumbs of coke,” coupled with her admission that they belonged to

her, we believe that the evidence indicating she lied to the trooper, while

likely prejudicial to Appellant, did not seriously affect the fairness of the

judicial proceedings. State v. Moon, 4th Dist. No. 08CA875, 2009-Ohio-

4830, ¶ 43. As we will discuss further under Appellant’s second assignment

of error, substantial evidence supports her conviction. As such, any error

associated with the admission of this evidence did not affect the outcome of

the proceedings and does not, therefore, rise to the level of plain error. Id.

EVIDENCE OF APPELLANT’S PRIOR INCARCERATION AND

OTHER CONTRABAND FOUND IN HER VEHICLE.

{¶20} Appellant contends that the admission of her statements caught

on video regarding the fact that she had had prior incarcerations, as well as

the admission of evidence that other drugs and paraphernalia were recovered
Washington App. No. 11CA22 12

from her vehicle, constituted inadmissible character evidence. She further

contends that this evidence was not relevant, and that the only purpose of the

evidence was “to demonstrate that [she] acted in conformity with the

underlying charged crime.”

{¶21} As Appellant objected to the admission of this evidence at trial,

we revert to the abuse of discretion standard. As we set forth above, while

we are mindful that relevant evidence is only admissible under Evid.R.

403(A) if its probative value is not outweighed by the danger of unfair

prejudice, “[t]he trial court has broad discretion in balancing the probative

value against the danger of unfair prejudice, and its determination will not be

disturbed on appeal absent a clear abuse of discretion.” State v. Reeves,

supra.

{¶22} We again reject Appellant’s assertion that the evidence at issue

is not relevant. Evid.R. 404 provides in section (B) that while “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

(Emphasis added). The fact that Appellant, at the time of her traffic stop,

was also in possession of other drugs and paraphernalia certainly is relevant
Washington App. No. 11CA22 13

to whether she also knowingly possessed cocaine. As such, we conclude

that this evidence was admissible under Evid.R. 404(B), and that the trial

court did not abuse its discretion in allowing it to be admitted.

{¶23} However, we agree with Appellant that admission of her

statements regarding her prior incarcerations were not admissible. We note,

however, that upon reviewing the entire dashcam video, we were unable to

discern any statements by Appellant indicating prior incarcerations. The

trial transcript indicates that these statements occurred 47 minutes into the

video, but we were unable to hear anything on the audio indicating such a

statement. Further, although the trial court denied the motion in limine,

during the playing of the video during the trial, the prosecution agreed to

stop the tape after Appellant’s confession. Thus, the portion of the video

after the confession which contains statements regarding prior incarcerations

was not played for the jury.

{¶24} Nonetheless, even assuming that these statements were audible

on the video, and that the jury heard them, as explained above, because

Appellant’s conviction was otherwise supported by substantial evidence,

which included Appellant’s own admission to owning the cocaine recovered

from her vehicle, Appellant cannot show that she was materially prejudiced

by the admission of this evidence. Thus, even assuming that the trial court
Washington App. No. 11CA22 14

erred and abused its discretion, particularly in the admission of the

statements regarding Appellant’s prior convictions, such admission was

harmless error. Accordingly, Appellant’s first assignment of error is

overruled.

ASSIGNMENT OF ERROR II

{¶25} In her second assignment of error, Appellant contends that her

conviction for possession of drugs is against the manifest weight of the

evidence, arguing that the greater weight of the evidence indicates that she

did not knowingly possess trace amounts of cocaine residue. The State

counters by arguing that the drugs were found pursuant to a legal search

conducted after a valid traffic stop, and that once the drugs were found,

Appellant admitted they belonged to her.

{¶26} “When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully

examine the entire record, weigh the evidence, and consider the credibility

of witnesses. The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve.” State v.

Puckett, 191Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 32;

citing State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus
Washington App. No. 11CA22 15

(1967). “If the prosecution presented substantial evidence upon which the

trier of fact reasonably could conclude, beyond a reasonable doubt, that the

essential elements of the offense had been established, the judgment of

conviction is not against the manifest weight of the evidence.” State v.

Puckett at ¶ 33; citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132,

syllabus (1978), (superseded on other grounds). We will reverse a conviction

only in the “exceptional” case where the evidence weighs heavily against the

conviction and it appears that the fact-finder, when resolving conflicts in the

evidence, “clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 54 (1997); quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

{¶27} R.C. 2925.11(A) provides that “[n]o person shall knowingly

obtain, possess, or use a controlled substance.” The jury found Appellant

guilty of the (C)(4)(a) subsection, which defines possession of “cocaine or a

compound, mixture, or preparation, or substance containing cocaine” as a

felony of the fifth degree. “Possession of a drug may be either actual

physical possession or constructive possession.” State v. Pullen, 2nd Dist.

No. 24620, 2012-Ohio-1858, ¶ 36; citing State v. Butler, 42 Ohio St.3d 174,

538 N.E.2d 98 (1989). “A person has constructive possession of an item
Washington App. No. 11CA22 16

when he is conscious of the presence of the object and able to exercise

dominion and control over that item, even if it is not within his immediate

physical possession.” Pullen at ¶ 36; citing State v. Hankerson, 70 Ohio

St.2d 87, 434 N.E.2d 1362 (1982).

{¶28} “In determining whether a defendant knowingly possessed a

controlled substance, it is necessary to examine the totality of the facts and

circumstances surrounding its discovery.” Pullen at ¶ 37; citing State v.

Teamer, 82 Ohio St.3d 490, 492, 696 N.E.2d 1049 (1998); State v. Pounds,

2nd Dist. No. 21257, 2006-Ohio-3040. Here, Appellant does not challenge

the validity of the traffic stop, or the subsequent search that was conducted.

Rather, she limits her argument on appeal to the contention that she “did not

knowingly possess cocaine at the time at which she had either actual or

constructive possession of it.” She premises her contention on an argument

that because the amount of the cocaine was so small that it could not be

weighed, that she could not have “knowingly” possessed it. Thus, Appellant

essentially challenges the trial court’s finding that she “knowingly”

possessed cocaine, as required by R.C. 2925.11(A).

{¶29} In State v. Teamer, supra at 491, the Supreme Court of Ohio

considered the certified issue of “whether the amount [of the controlled
Washington App. No. 11CA22 17

substance] is a factor in determining the crime of drug abuse.”3 The Court

ultimately held that “[t]he quantity of a controlled substance is not a factor in

determining whether a defendant may lawfully be convicted of drug abuse,

in violation of R.C. 2925.11(A)” Id. at syllabus. In reaching this decision,

the Court reasoned that “the unambiguous language of R.C. 2925.11

punishes conduct for the possession of any amount of a controlled

substance.” Id. at 491. The Court further found that “[a]s long as there is

scientifically accepted testimony from which a factfinder could conclude

beyond a reasonable doubt that a controlled substance was present, a

conviction for drug abuse pursuant to R.C. 2925.11(A) will not be reversed

based upon the amount of contraband involved.” Id. at 492.

{¶30} The relevant and probative evidence introduced by the State

included: 1) Appellant’s inculpatory statements made on video, and to the

troopers after the drugs were found, in which she identified the drugs as

cocaine and admitted they belonged to her; and 2) the testimony of the

trooper who found the cocaine in Appellant’s purse, which was located in

the vehicle from which Appellant was removed; and 3) the testimony of the

criminologist, who confirmed that the substance at issue was cocaine.

3
Although Teamer focused on “drug abuse” rather than “possession of drugs,” we find the reasoning and
holding to be applicable to “possession of drugs,” which is at issue sub judice.
Washington App. No. 11CA22 18

{¶31} After reviewing the record before us, we cannot conclude that

this is one of the exceptional cases where the evidence weighs heavily

against the jury verdict. When viewed in light most favorable to the

prosecution, and in light of the reasoning of Teamer, this combination of

direct and circumstantial evidence clearly permits a rational trier of fact to

find beyond a reasonable doubt that Appellant knowingly possessed the

cocaine found in the vehicle. Further, we simply reject Appellant’s assertion

that because she denied having possession of any illegal substances

throughout the duration of the search, and only admitted to owning them

after they were found, that she did not “knowingly” possess cocaine.

Accordingly, Appellant’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

{¶32} In her third assignment of error, Appellant contends that she

was denied her right to the effective assistance of counsel when her trial

counsel failed to timely file a motion to suppress, failed to object with

sufficient specificity to inadmissible evidence, and failed to timely object to

inadmissible testimony. The State responds by arguing that there is nothing

to indicate that a successful motion to suppress would have changed the

outcome of the jury’s guilty finding, and that the properly admitted
Washington App. No. 11CA22 19

testimony of the trooper and criminologist alone was more than sufficient for

the jury to have found Appellant guilty beyond a reasonable doubt.

{¶33} In order to prove a claim of ineffective assistance of counsel, a

defendant must show that his counsel's performance was deficient, i.e., not

reasonably competent, and that counsel's deficiencies prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus

(1989). When considering whether trial counsel's representation amounts to

deficient performance, “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance.” Strickland at 689. Thus, “the defendant must overcome the

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

considered sound trial strategy.” Id.

{¶34} To establish prejudice, a defendant must demonstrate that a

reasonable probability exists that but for counsel's errors, the result of the

trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693

N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373,

paragraph three of the syllabus (1989). Furthermore, courts should not

simply assume the existence of prejudice, but require that it be affirmatively

shown. See State v. Hairston, 4th Dist. No. 06CA3089, 2007-Ohio-3707, ¶
Washington App. No. 11CA22 20

16; citing State v. Clark, 4th Dist. No. 02CA684, 2003-Ohio-1707, ¶ 22;

State v. Tucker, 4th Dist. No. 01CA2592, 2002 Ohio-1597; State v. Kuntz, 4th

Dist. No. 1691, 1992 WL 42774 (Feb. 26, 1992). If one prong of the

Strickland test disposes of a claim of ineffective assistance of counsel, we

need not address both aspects. State v. Martin, 4th Dist. No. 06CA3110,

2007-Ohio-4258, ¶ 21.

{¶35} As we stated earlier, the admission or exclusion of evidence

rests within the sound discretion of the trial court. As such, absent an abuse

of discretion, we will not disturb a trial court's ruling regarding the

admissibility of evidence. Having overruled Appellant’s challenges raised

herein, we cannot conclude that trial counsel’s failure to object to the

complained of portions of the trooper testimony and video tape changed the

outcome of the trial. Further, considering that Appellant identified the drugs

found and admitted to ownership of them, we cannot conclude that a

successful motion to suppress on other grounds would have changed the

outcome of the trial. Thus, Appellant cannot establish prejudice. State v.

Dickess, 174 Ohio App.3d 658, 2008-Ohio-39, 884 N.E.2d 92, ¶ 73; See

also State v. Parker, 4th Dist. No. 03CA43, 2004-Ohio-1739, 2004 WL

728249, ¶ 13 (concluding that in light of overwhelming evidence of guilt,

defendant could not establish prejudice resulting from counsel's alleged
Washington App. No. 11CA22 21

ineffectiveness); State v. Hester, 10th Dist. No. 02AP-401, 2002-Ohio-6966,

¶ 16 (finding that overwhelming evidence of guilt prevented defendant from

proving that result would have been different).

{¶36} As such, even assuming arguendo that trial counsel’s

representation constituted deficient performance, because we find no

prejudice occurred as a result, we cannot conclude that Appellant received

ineffective assistance of counsel. Accordingly, Appellant’s third and final

assignment of error is overruled.

JUDGMENT AFFIRMED.
Washington App. No. 11CA22 22

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing
the Washington County Common Pleas 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.
Exceptions.

Abele, P.J. and Kline, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________
Matthew W. McFarland, 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.