[Cite as State v. Anderson, 2013-Ohio-2786.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26600
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TINA F. ANDERSON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 09 2565
DECISION AND JOURNAL ENTRY
Dated: June 28, 2013
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
erratically 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 driver’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.
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{¶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. Officer 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 to 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
R.C. 2925.11(A)(C)(1), possession of drugs, in violation of R.C. 2925.11(A)(C)(2), lanes of
travel/weaving, in violation of R.C. 4511.25, lighted lights and illuminating devices required, in
violation of R.C. 4513.03, and operating under the influence of alcohol or drugs, in violation of
1
Angela Anderson died prior to trial due to natural, unrelated causes.
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R.C. 4511.19(A)(1)(a). The record indicates that Ms. Anderson pleaded not guilty to all charges,
and that, prior to trial, the State dismissed the charge of possession of drugs.
{¶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 intervention 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 counsel’s performance was deficient to the extent that “counsel was not
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functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but
for counsel’s deficient performance the result of the trial would have been different. Strickland
v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below an
objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136, (1989)
paragraph two of the syllabus. However, “a court must indulge 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. Further, to establish prejudice,
Ms. Anderson must show that there exists a reasonable probability that, were it not for counsel’s
errors, the result of the trial would have been different. Id. at 694.
{¶11} Here, Ms. Anderson first asserts that trial counsel should have 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 because 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 authenticate 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
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above, we cannot consider evidence dehors the record in this appeal. See Brooks at ¶ 20. We
note that the trial court allowed Ms. Anderson’s counsel to use the prescription printouts as an
aid to refresh her recollection during testimony. Additionally, Detective David Zampelli testified
that, during his investigation, he pulled an OARRS report through the Ohio automated
prescription reporting system in order to retrieve Ms. Anderson’s full prescription history, and it
did not show prescriptions for two of the drugs found in her purse. Therefore, even if we could
say that trial counsel performed deficiently by failing to subpoena a pharmacist, Ms. Anderson
was not prejudiced because the jury heard the testimony regarding her prescription history
through other sources.
{¶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 police 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 recovered a blue bag from the purse, or was
it somewhere else in the vehicle?
A. No. It was in the purse.
***
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.
***
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.
***
(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 questioning 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 request 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
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one of the drugs found in Ms. Anderson’s purse. At that time, trial counsel made an oral motion
for a new trial, stating, “[s]he handed me a prescription that neither the prosecutor nor myself
had seen up until, you know, ten minutes ago, and it was a prescription for one of the pills that
was on the BCI report.” The judge instructed him as follows:
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
appeal. 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 trial. Crim.R. 33(A)(6) states that a new trial
may be granted on the motion of the defendant “[w]hen new evidence material to the defense is
discovered which the defendant could not with reasonable diligence have discovered and
produced at the trial.” As such, trial counsel may have made a strategic decision not to file a
written motion for a new trial. Therefore, based upon the limited record before us, we cannot
conclude that trial counsel’s performance was deficient in this regard.
{¶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 error, the judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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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 journal 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 for 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.