State v. Robinson

[Cite as State v. Robinson, 2015-Ohio-4649.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2014-12-256

: OPINION
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:

CHARLES DUANE ROBINSON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2014-10-1523

Michael T. Gmoser, Butler County Prosecuting Attorney, Audra R. Adams, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

John T. Willard, P.O. Box 35, Hamilton, Ohio 45012, for defendant-appellant

RINGLAND, J.

{¶ 1} Defendant-appellant, Charles Duane Robinson, appeals a decision of the Butler

County Court of Common Pleas convicting him of multiple weapons-related offenses. For

the reasons outlined below, we affirm.

{¶ 2} In the early morning hours of September 25, 2014, Officer Mark Specht of the

Middletown Police Department was dispatched to a local United Dairy Farmers ("UDF") to

investigate a disturbance. When the officer arrived, he positioned his cruiser behind a white
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Hyundai Sonata parked at one of the gas pumps. One man, later identified as Brandon

Davis, was leaning against the driver's side of the vehicle near the open gas tank and

appeared to be unconscious. Appellant was sitting in the passenger seat. A third man, Tyon

Thomas, exited the UDF seconds before the officer arrived.

{¶ 3} According to his testimony, Officer Specht addressed appellant through the

open driver's side window. Appellant was leaning forward and moving his right hand back

and forth in between the seat and the passenger door. Wary of appellant's movements,

Officer Specht told him to step out of the car. Appellant sternly refused at first. He eventually

complied, reaching over with his left hand to open the passenger side door.

{¶ 4} A pat down yielded no weapons on appellant. When Officer Specht opened the

passenger door, he found a Hi-Point .45-caliber handgun on the floor in between the

passenger seat and the car door. The gun held three live rounds of ammunition. After

securing the firearm, the officer placed appellant under arrest.

{¶ 5} Appellant was indicted on one count of carrying concealed weapons, one count

of having weapons while under disability, and one count of improperly handling firearms in a

motor vehicle. Following a jury trial, he was found guilty on all counts. The trial court

sentenced appellant to 12 months imprisonment for carrying a concealed weapon and 36

months imprisonment for having a weapon while under disability to be served consecutive to

the 12-month term. The court merged appellant's conviction for improperly handling firearms

in a motor vehicle, finding it to be an allied offense of similar import. Appellant timely

appeals, raising four assignments of error.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE STATUTES UNDER WHICH THE APPELLANT WAS CHARGED (R.C.

2913.12 A 2 AND 2923.13 A2) ARE UNCONSTITUTIONAL IN THAT THEY PURPORT TO

AND DO PROHIBIT THE CONSTITUTIONAL RIGHT TO KEEP AND BEAR ARMS UNDER
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THE 2ND AMENDMENT TO THE UNITED STATES CONSTITUTION. R.C. 2923.13 A2

ALSO VIOLATES THE DUE PROCESS CLAUSE UNDER THE FOURTEENTH

AMENDMENT TO THE U.S. CONSTITUTION, IN THAT IT FAILS TO PROVIDE A

PROCEDURE BY WHICH A PERSON CAN HAVE HIS FULL RIGHTS RESTORED AFTER

TIME IS SERVED AND PROBATION IS COMPLETED. THE STATUTES IN QUESTION

ALSO VIOLATE SECTION 4, ARTICLE I OF THE OHIO CONSTITUTION THAT ALLOWS

WEAPONS FOR SELF-DEFENSE [sic].

{¶ 8} Appellant challenges the constitutionality of the statutes upon which his

convictions were predicated, claiming they violate his right to keep and bear arms under the

Second Amendment to the United States Constitution and Article I, Section 4 of the Ohio

Constitution. Appellant also argues that his right to self-defense, implicit within these

constitutional provisions, was infringed.

{¶ 9} Initially, we observe that appellant failed to raise any objections at trial

regarding the constitutionality of the statutes in question. As a result, appellant has forfeited

all but plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 16; Crim.R.

52(B). Plain error exists where there is an obvious deviation from a legal rule which affected

the defendant's substantial rights, or influenced the outcome of the proceeding. State v.

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. Notice of plain error is taken with the 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.

{¶ 10} We begin by noting that legislative enactments enjoy a strong presumption of

constitutional validity. State v. Collier, 62 Ohio St.3d 267, 269 (1991). In order to be

declared unconstitutional, the legislation in controversy must be clearly incompatible with a

specific constitutional provision. State v. Carswell, 117 Ohio St.3d 210, 2007-Ohio-3723, ¶ 7.

The existence of a conflict must be demonstrated beyond a reasonable doubt, and the
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burden lies with the proponent of the conflict. Collier at 269. We are mindful of these

principles in analyzing whether the trial court plainly erred in convicting appellant of the

allegedly unconstitutional offenses in the case at bar.

{¶ 11} The right to keep and bear arms is a fundamental right enshrined in federal and

state constitutional law. The United States Supreme Court held that the Second Amendment

to the United States Constitution confers an individual right to keep and bear arms in the

landmark case of District of Columbia v. Heller, 554 U.S. 570, 959, 128 S.Ct. 2783 (2008).

See also McDonald v. City of Chicago, Ill., 561 U.S. 742, 750, 130 S.Ct. 3020 (2010)

(extending the Second Amendment right to bear arms to the states by way of the Due

Process Clause of the Fourteenth Amendment). This right is subject to certain longstanding

limitations. Heller at 626. As noted by the Heller court:

Like most rights, the right secured by the Second Amendment is
not unlimited. From Blackstone through the 19th-century cases,
commentators and courts routinely explained that the right was
not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose. * * * Although we
do not undertake an exhaustive historical analysis today of the full
scope of the Second Amendment, nothing in our opinion should
be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.

(Emphasis added.) Id. at 626-27.

{¶ 12} Similarly, the right to keep and bear arms is not absolute under the Ohio

Constitution. State v. Taniguchi, 74 Ohio St.3d 154, 157, 1995-Ohio-163 ("[i]t is basic

hornbook law that the state under its police powers may impose restrictions on who may

possess firearms"); Arnold v. Cleveland, 67 Ohio St.3d 35, 45-46 (1993) (the fundamental

right to bear arms conferred by Section 4, Article I of the Ohio Constitution may be limited in

furtherance of valid public safety interests). The Ohio Supreme Court distinguished between

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the right to bear arms and the right to carry them concealed in Klein v. Leis, 99 Ohio St.3d

537, 2003-Ohio-4779. Rather than prohibiting the carrying of weapons entirely, the court

reasoned, R.C. 2923.12 regulates the manner in which weapons can be carried. Id. at ¶ 13.

In other words, "there is no constitutional right to bear concealed weapons." (Emphasis

added.) Id. at ¶ 15. The court thereafter upheld the constitutionality of R.C. 2923.12, the

concealed carry statute. Id.

{¶ 13} Although Klein preceded Heller and its progeny, the underlying rationale of

Klein remains valid. Accordingly, we reaffirm that R.C. 2923.12 does not unconstitutionally

infringe upon the right to keep and bear arms as guaranteed by federal and state

constitutional law. Id. See also State v. Campbell, 1st Dist. Hamilton No. C-120871, 2013-

Ohio-5612.

{¶ 14} Ohio's statutory prohibition against having weapons while under disability has

also been declared constitutional by several appellate jurisdictions in Ohio, including this one.

State v. Winkelman, 2 Ohio App.3d 465 (12th Dist.1981), paragraph one of the syllabus,

overruled in part, State v. Frederick, 12th Dist. Butler Nos. CA88-07-111 and CA88-07-118,

1989 WL 80493, at *2-4 (July 17, 1989) (reversing Winkelman only insofar as it held that

notice of disability flowing from a pending indictment is a prerequisite to conviction under

R.C. 2923.13). See also State v. Morris, 11th Dist. Trumbull No. 2008-T-0110, 2009-Ohio-

6033, ¶ 84-85; State v. Thomas, 5th Dist. Tuscarawas No. 2000AP 06 0046, 2001 WL

1789437, at *4 (Jan. 25, 2001); State v. White, 3d Dist. Marion No. 9-96-66, 1997 WL

180307, at *3 (Mar. 28, 1997); State v. Johnson, 1st Dist. Hamilton No. C-780305, 1979 WL

208723, at *2 (Mar. 21, 1979).

{¶ 15} While the fundamental right to bear arms demands reverence, it is well-

established that this right is surrendered when one engages in violent felony activity. Cf.

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Heller, 554 U.S. at 626-27. Appellant cites no poignant authority to support his assertion that

we should upend this longstanding precedent post Heller. At trial, appellant stipulated that

he had previously been convicted of a violent felony offense. It is thus undisputed that

appellant was under disability at the time of the incident in question. Consequently, appellant

was ineligible to carry a firearm while the disability remained intact.

{¶ 16} Contrary to appellant's assertions, the General Assembly provided a

mechanism for relief from weapons disability. Appellant contends that R.C. 2923.13(A)(2)

violates the Due Process Clause of the 14th Amendment to the United States Constitution

because there is no hearing or other vehicle by which a person convicted of a felony can

restore his right to carry a firearm subsequent to rehabilitation. Undeniably, R.C. 2923.14(A)

provides for just such relief: "Any person who is prohibited from acquiring, having, carrying, or

using firearms may apply to the court of common pleas in the county in which the person

resides for relief from such prohibition." The record does not demonstrate that appellant

availed himself of this legislative avenue for relief from disability. Because such a remedy is

indeed available, appellant's due process argument is without merit. In re Hensley, 154 Ohio

App.3d 210, 2003-Ohio-4619, ¶ 41 (12th Dist.).

{¶ 17} Finally, appellant submits that the ability to defend oneself while travelling by

vehicle is inhibited by R.C. 2923.16(B), which limits access to weapons within a vehicle.

Appellant urges that the constitutional reverence and safeguards afforded to the right of self-

defense in the home should be extended to the right of self-defense in a vehicle.

{¶ 18} As recently observed by the Ninth District Court of Appeals, "[t]he precise scope

of the Second Amendment guarantee remains in question." State v. Glover, 9th Dist.

Summit No. 27307, 2015-Ohio-2751, ¶ 5, citing Powell v. Tompkins, 783 F.3d 332, 348 (1st

Cir.2015). We shall assume, for the sake of discussion, that the right to bear arms extends

to motor vehicles. Similar to the concealed carry statute, R.C. 2923.16 restricts the manner
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in which firearms may be handled in a motor vehicle. State v. King, 2d Dist. Montgomery No.

24141, 2011-Ohio-3417, ¶ 25. The statute does not operate as a blanket prohibition on

transporting firearms while travelling by vehicle. Id. Thus, R.C. 2923.16 does not

unconstitutionally infringe upon the right to keep and bear arms. Id. See also State v.

Henderson, 11th Dist. Portage No. 2010-P-0046, 2012-Ohio-1268, ¶ 55; State v. Watson,

157 Ohio App.3d 217, 2004-Ohio-2628, ¶ 20.

{¶ 19} We conclude that the constitutional challenges advanced by appellant do not

satisfy the plain error standard. Appellant's first assignment of error is overruled.

{¶ 20} Assignment of Error No. 2:

{¶ 21} THE JUDGMENT AND THE CONVICTION IN THE INSTANT CASE WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 22} Though worded in terms of manifest weight, the substance of appellant's

argument contests his convictions solely on the grounds of insufficient evidence. Appellant

claims that the record is devoid of evidence indicating he owned the firearm in question, such

as fingerprints or DNA. Further, appellant submits that there was no evidence he owned the

vehicle in which the firearm was found, nor that he knew the weapon was present.

{¶ 23} Whether a conviction is supported by evidence sufficient to sustain a verdict is

a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. When

addressing a sufficiency claim, a reviewing court examines the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. "The relevant inquiry is whether, after viewing the evidence in

a light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt." Id.

{¶ 24} Appellant was convicted of carrying a concealed weapon in violation of R.C.
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2923.12(A)(2), which provides that "[n]o person shall knowingly carry or have, concealed on

the person's person or concealed ready at hand, * * * [a] handgun* * *[.]"

{¶ 25} Appellant was also convicted of having a weapon while under disability in

violation of R.C. 2923.13(A)(2), which provides that, "[u]nless relieved from disability under

operation of law or legal process, no person shall knowingly acquire, have, carry, or use any

firearm or dangerous ordnance, if * * * [t]he person is under indictment for or has been

convicted of any felony offense of violence* * *."

{¶ 26} Finally, appellant was convicted of improperly handling firearms in a motor

vehicle in violation of R.C. 2923.16(B), which provides that "[n]o person shall knowingly

transport or have a loaded firearm in a motor vehicle in such a manner that the firearm is

accessible to the operator or any passenger without leaving the vehicle."

{¶ 27} Appellant stipulated to being under disability and to the operability of the gun.

Furthermore, the concealed nature of the gun is clear from the record. Officer Specht

testified that he could not see the gun while addressing appellant through the open driver's

side window, and was only able to see it after he opened the passenger door. Hence, the

elements at issue are appellant's knowledge, possession, and active concealment of the

firearm.

{¶ 28} To act "knowingly" means that a person is aware his conduct will probably

cause a certain result, or that certain circumstances probably exist. R.C. 2901.22(B). "When

knowledge of the existence of a particular fact is an element of an offense, such knowledge

is established if a person subjectively believes that there is a high probability of its existence

and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." Id.

{¶ 29} Possession entails having control over an object. R.C. 2925.01(K).

Circumstantial evidence of possession may adequately support a conviction if that evidence

would convince the average mind of the defendant's guilt beyond a reasonable doubt. State
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v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75. Circumstantial evidence holds the

same probative value as direct evidence. See State v. Crutchfield, 12th Dist. Warren No.

CA2005-11-121, 2006-Ohio-6549, ¶ 20.

{¶ 30} After thoroughly reviewing the record, we find sufficient evidence to show that

appellant knowingly possessed and concealed the firearm in the vehicle on the night in

question. Possession may not be inferred solely from mere access to an object or to the

locale in which it was found. See R.C. 2925.01(K). We are not faced with such a tenuous

connection in the case at bar. "Constructive possession exists when one is conscious of the

presence of the object and able to exercise dominion and control over it, even if it is not

within his immediate physical possession." State v. Gaefe, 12th Dist. Clinton No. CA2001-

11-043, 2002-Ohio-4995, ¶ 9. Here, the record is replete with circumstantial evidence

supporting a finding that appellant possessed or, at a minimum, constructively possessed the

firearm. See State v. Williams, 12th Dist. Butler No. CA2014-09-180, 2015-Ohio-2010, ¶ 15

(finding that "[a] discovery of readily accessible drugs in close proximity to the accused

constitutes circumstantial evidence that the accused was in constructive possession of the

drugs").

{¶ 31} As stated, Officer Specht observed appellant making furtive arm movements

while sitting in the passenger seat. The officer's testimony described appellant leaning

forward and putting his right hand down in between the seat and the passenger door.

Appellant initially refused to exit the vehicle, presumably stalling for time to conceal the

firearm next to his seat. When appellant finally exited the vehicle, he reached across his

body and opened the passenger door with his left hand. The officer inferred that appellant's

right hand was still occupied with the firearm, a .45-caliber weapon too large and unwieldy to

slide under the passenger seat in a Hyundai Sonata.

{¶ 32} All three men went into the UDF convenience store. The surveillance video did
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not show any man other than appellant getting into and out of the Sonata's passenger seat.

The video showed the "passed out man," exit the store and go straight to the driver's side of

the vehicle next to the gas pump. He remained there, leaning against the car with the gas

nozzle inserted into the tank, until Officer Specht pulled up. The third man, Thomas, exited

the convenience store just before the officer arrived. As far as the video shows, neither

Davis nor Thomas went near the Sonata's passenger seat prior to Officer Specht's arrival.

{¶ 33} Appellant argues that there was no evidence the gun belonged to him. But the

pieces of the evidentiary puzzle, including Officer Specht's testimony and UDF surveillance

videos inside and outside the store, support appellant's convictions. See State v. Campbell,

5th Dist. Stark No. 2004CA00176, 2005-Ohio-795, ¶ 29 (furtive movements, defendant's

occupation of seat, and location of firearm next to defendant's seat were among evidence

that supported conviction for carrying a concealed weapon).

{¶ 34} Because the record contains sufficient evidence to establish that appellant

knowingly possessed and concealed the loaded firearm in the vehicle, appellant's second

assignment of error is overruled.

{¶ 35} Assignment of Error No. 3:

{¶ 36} IT WAS ERROR FOR THE COURT TO FAIL TO MERGE THE CARRYING

CONCEALED WEAPON CHARGE (RC 2923.12 A2) AND WEAPONS UNDER DISABILITY

CHARGE (2923.13A2) FOR SENTENCING PURPOSES.

{¶ 37} According to appellant, the trial court erred in sentencing him on his convictions

for carrying a concealed weapon and having a weapon while under disability because these

offenses are allied offenses of similar import under R.C. 2941.25.

{¶ 38} Typically, a reviewing court conducts a de novo review of a trial court's R.C.

2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶

28. However, as in this case, a reviewing court is limited to a plain error analysis when the
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accused fails to properly preserve a merger issue by objecting at the trial court level. State v.

Willis, 12th Dist. Butler No. CA2012-08-155, 2013-Ohio-2391, ¶ 33-35. See also State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31 (failure to merge convictions at

sentencing which are allied offenses under R.C. 2941.25 constitutes plain error). As

discussed, plain error occurs where there is an obvious deviation from a legal rule which

affected the defendant's substantial rights, or influenced the outcome of the proceeding.

Barnes, 94 Ohio St.3d at 27.

{¶ 39} R.C. 2941.25, Ohio's multiple-count statute, prohibits the imposition of multiple

punishments for the same criminal conduct. State v. Brown, 186 Ohio App.3d 437, 2010-

Ohio-324, ¶ 7 (12th Dist.). Specifically, R.C. 2941.25 provides:

(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two
or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.

{¶ 40} The Ohio Supreme Court clarified the tripartite test for deciphering allied

offenses within the meaning of R.C. 2941.25 in State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995. Courts scrutinizing the issue of merger under R.C. 2941.25 must evaluate three

distinct factors – conduct, animus, and import. Ruff at paragraph one of the syllabus.

Pursuant to Ruff:

[W]hen determining whether offenses are allied offenses of
similar import within the meaning of R.C. 2941.25, courts must
ask three questions when the defendant's conduct supports
multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation? An
affirmative answer to any of the above will permit separate
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convictions.

Id. at ¶ 31.

{¶ 41} In a case subsequent to Ruff, the Tenth District Court of Appeals considered

whether a defendant's convictions for carrying a concealed weapon and having a weapon

while under disability were allied offenses of similar import. State v. Hobbs, 10th Dist.

Franklin No. 14AP-225, 2015-Ohio-2419, ¶ 35. The court cited a line of cases predating

Ruff, all of which had concluded that carrying a concealed weapon and having a weapon

while under disability are committed with separate animus, thus obviating merger. Id., citing

State v. Rice, 69 Ohio St.2d 422, 427 (1982); State v. Willis, 2013-Ohio-2391 at ¶ 41-43;

State v. Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747, ¶ 46-49; State v. Ryan, 7th

Dist. Mahoning No. 10-MA-173, 2012-Ohio-1265, ¶ 53. Thereafter, the appeals court held

that "Ruff does not change the rationale or validity of those cases because Ruff still prohibits

merger if offenses are committed with separate animus." Hobbs at ¶ 35. We agree.

{¶ 42} In the context of Ohio's multiple-count statute, "animus" refers to purpose or,

more precisely, immediate motive. State v. Lewis, 12th Dist. Clinton No. CA2008-10-045,

2012-Ohio-885, ¶ 13. Animus for multiple offenses is identical where a defendant acted with

the same purpose, intent, or motive in committing the offenses. Id. Often, animus must be

inferred from surrounding circumstances. State v. Lung, 12th Dist. Brown No. CA2012-03-

004, 2012-Ohio-5352, ¶ 12.

{¶ 43} After reviewing the record in the case sub judice, we find that appellant's

animus in carrying a concealed weapon was distinct from his animus in having a weapon

while under disability. The purpose or immediate motive behind carrying a concealed

weapon is to unlawfully hide a weapon from plain view. The purpose or immediate motive

behind having a weapon while under disability is to possess said weapon despite being

legally prohibited from doing so. These animi are clearly distinct. Someone can purposefully
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have a weapon in contravention of legal prohibition while not concealing it, and vice versa.

Therefore, merger of these offenses was unwarranted.

{¶ 44} Because the trial court did not plainly err in declining to merge the

aforementioned convictions, appellant's third assignment of error is overruled.

{¶ 45} Assignment of Error No. 4:

{¶ 46} THE APPELLANTS [sic] TRIAL IN THE INSTANT CASE WAS TAINTED BY

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND THE MATTER SHOULD BE

REVERSED ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 47} Appellant contends that defense counsel's performance was deficient in failing

to seek suppression of the firearm and in failing to call numerous witnesses at trial.

{¶ 48} To establish ineffective assistance of counsel, appellant must show that

counsel's actions fell below an objective standard of reasonableness and that appellant was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-88, 693, 104 S.Ct. 2052

(1984). Prejudice exists where there is a reasonable probability that, but for counsel's errors,

the result of the trial would have been different. Id. at 694. The proponent of an ineffective

assistance claim must establish both elements to warrant relief. State v. Knowlton, 4th Dist.

Washington No. 10CA31, 2012-Ohio-2350, ¶ 35. Failure to satisfy one prong of the

ineffective assistance test renders review of the other prong unnecessary. State v. Bradley,

42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697; State v. Napier, 12th Dist.

Clermont Nos. CA2014-06-039 and CA2014-06-046, 2015-Ohio-1413, ¶ 12.

{¶ 49} In order to demonstrate ineffective assistance of counsel based upon the failure

to file a motion to suppress, the defendant must advance a viable legal basis for suppression

of the evidence in question. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶ 35;

State v. Smith, 12th Dist. Fayette No. CA2014-05-013, 2015-Ohio-1094, ¶ 44. Even so,

sound trial strategy does not constitute ineffective assistance of counsel. State v. Conway,
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109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101. Where trial counsel decides that filing a motion

to suppress would be futile, this determination is presumed reasonable. State v. Brown, 12th

Dist. Warren No. CA2002-03-026, 2002-Ohio-5455, ¶ 11.

{¶ 50} After reviewing the record, we find that trial counsel's decision to forego a

motion to suppress was not objectively unreasonable. Despite appellant's arguments to the

contrary, Officer Specht was legally justified in searching the vehicle. According to the

officer's testimony, appellant's furtive arm movements while seated in the vehicle prompted

the officer's suspicion of danger. Appellant's initial, stern refusal to exit the vehicle only

fostered the officer's apprehensions. The officer testified that he believed appellant was

trying to stall for time for whatever he was doing beside the passenger seat. Appellant's

reaching across his body to open the car door with his left hand furthered this suspicion. In

the wake of these observations, a protective search of the vehicle was warranted. Michigan

v. Long, 463 U.S. 1032, 1049-50, 103 S.Ct. 3469 (1983). Officer Specht was justified in

checking for weapons prior to allowing appellant to return to the car. See id. Because a

motion to suppress the results of the search would have been futile, trial counsel was not

ineffective for electing to forego the motion. Brown, 2002-Ohio-5455 at ¶ 11.

{¶ 51} Regarding proposed trial witnesses, appellant specifically attacks trial counsel's

failure to call "the driver of the vehicle." Though unnamed in appellant's brief, we assume

appellant was referring to Brandon Davis. A decision regarding whether or not to call

witnesses falls within the ambit of trial strategy. State v. Were, 118 Ohio St.3d 448, 2008-

Ohio-2762, ¶ 222; State v. McMullen, 12th Dist. Butler Nos. CA2005-09-414, CA2005-10-

427, and CA2005-10-429, 2006-Ohio-4557, ¶ 53. As stated, we afford trial counsel's

strategic decisions considerable deference. Moreover, appellant offers only speculation as to

what Davis may have testified. Mere speculation regarding witness testimony is insufficient

to sustain a claim of ineffective assistance of counsel. McMullen at ¶ 53. Despite appellant's
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protestations, we cannot reverse a conviction based upon what a potential witness "may"

have said.

{¶ 52} In addition, pursuant to Officer Specht's testimony, Davis appeared to be so

intoxicated that he was leaning against the car unconscious when the officer arrived. The

surveillance video depicted Davis repeatedly laying his head down and struggling to remain

conscious inside the UDF convenience store. Undoubtedly, testimony by a witness in such a

state would not have been afforded much weight at trial. We conclude that defense

counsel's decision not to present testimony from Davis and other unnamed witnesses at trial

was not objectively unreasonable.

{¶ 53} Because appellant has failed to establish that defense counsel's decisions were

unreasonable, his ineffective assistance claim is without merit. Appellant's fourth assignment

of error is overruled.

{¶ 54} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

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