State v. Sykes

[Cite as State v. Sykes, 2018-Ohio-983.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, ) CASE NO. 16 MA 0162
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
RAYMOND SYKES, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 16 CR 879

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Atty. John D. Falgiani, Jr.,
P.O. Box 8533
Warren, Ohio 44484

JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: March 13, 2018
[Cite as State v. Sykes, 2018-Ohio-983.]
ROBB, P.J.

{¶1} Defendant-Appellant Raymond Sykes appeals his conviction for
possession of heroin after a jury verdict in the Mahoning County Common Pleas
Court. He contests both the sufficiency and the weight of the evidence to support his
conviction. He also claims the heroin evidence should have been suppressed,
raising plain error and ineffective assistance of counsel as no suppression motion
was filed. For the following reasons, the trial court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On July 9, 2016, Officer Dunkle was waiting at a red light in Youngtown
with Officer Trimble as her passenger. Officer Trimble saw Appellant drive past in a
Lexus SUV with one passenger. He knew Appellant from prior encounters, including
driving under suspension encounters. (Tr. 138, 142, 156-157). Officer Trimble
noticed the occupants of the Lexus staring at the police car and “uncomfortably * * *
turning” their heads after passing the police car “as if they were trying to see what we
were going to do, what our next move was.” (Tr. 138). When the light changed,
Officer Dunkle turned onto the one-way street behind Appellant.
{¶3} Officer Trimble checked the vehicle registration and discovered the
vehicle had been reported stolen in Pennsylvania, which prompted other officers to
respond to the scene. (Tr. 139, 158, 183). Officer Dunkle initiated a traffic stop and
confirmed Appellant was driving under suspension. (Tr. 139-140, 185). Appellant
said the vehicle belonged to his girlfriend, and he called her to ask her to come to the
scene. (Tr. 157, 185). Appellant was arrested, as was his passenger who had an
outstanding warrant. (Tr. 141). Since the vehicle had been reported stolen, the
officers prepared to tow it. Based upon standard procedures and policies of the
Youngstown Police Department, an administrative inventory search was conducted
prior to towing. (Tr. 142, 187).
{¶4} In the back cargo section of the SUV was a child’s Minnie Mouse
backpack and a blue cardboard cylinder of table salt. Officer Trimble noticed the
backpack contained a large object. Inside the backpack was a clear plastic
Tupperware container containing marijuana. (Tr. 143). The salt cylinder contained a
 -2-

white granular substance, which was likely salt, but it also had a false bottom, which
unscrewed to reveal a hidden compartment. In the compartment was a baggie
containing a tan substance which appeared to be heroin. (Tr. 143-144). Officer
Trimble weighed the heroin at the scene and found it to weigh approximately 7.3
grams. (Tr. 146). Appellant said the drugs belonged to his girlfriend and were not
his. (Tr. 163, 188).
{¶5} Appellant’s girlfriend, Hattie Marrow, arrived at the scene stating she
owned the vehicle and had not reported it as stolen. (Tr. 146-147, 186). The officers
were unable to release the vehicle to her as it had been reported stolen in
Pennsylvania and they could not verify the situation until a detective conducted an
investigation. (Tr. 159-160, 186-187). She claimed any illegal items inside the
vehicle belonged to her. Officer Trimble said she could not identify anything in
particular that belonged to her except marijuana and a compact Glock firearm;
however, no firearm was recovered. (Tr. 147-148, 160-161, 189). She did not
mention a backpack, salt, heroin, or over $500 in cash recovered during the search.
(Tr. 147-149).
{¶6} Upon arriving at the jail: Appellant asked Officer Trimble how much the
heroin weighed; the officer answered it weighed over 7 grams; Appellant seemed
shocked and asked if he weighed it with the bag; the officer said he did; and
Appellant replied, “oh, okay, because that’s only about a little over 6 grams of heroin.”
(Tr. 150-151, 190-191). A sample of the tan powder tested positive for heroin when a
“NarcoPouch” test kit was used at the police station. (Tr. 173). Thereafter, the
state’s Bureau of Criminal Investigation (BCI) confirmed the presence of heroin in the
substance weighing 6.21 grams (without the bag). (Tr. 201).
{¶7} The possession of heroin charge was tried to a jury in October 2016.
The state presented testimony by Officer Trimble, Officer Dunkle, the officer who
tested the heroin at the police station, and the BCI scientist who tested the heroin in
the laboratory. Hattie Marrow testified for the defense. She explained she was
Appellant’s fiancée, they lived together, she was 26 years old, and he was the father
of four of her nine children who all lived with them. (Tr. 225, 231). She said
 -3-

Appellant had his own vehicle but he had a key to hers as they shared vehicles. (Tr.
229, 241).
{¶8} Ms. Marrow testified she drove to the scene (while “high”) within ten
minutes of Appellant’s call to her. (Tr. 226, 228). She saw the officers searching the
vehicle and told them it belonged to her. Ms. Marrow testified she told an officer
there was marijuana in a Minnie Mouse backpack. The backpack belonged to one of
her children. (Tr. 229). She said the officer asked her where exactly it was located
within the vehicle but she could not remember because she was high. (Tr. 228). Ms.
Marrow testified she was still feeling the effects of the heroin she purchased the night
before and more recently smoked a “blunt.” (Tr. 229-230, 240). As for her reference
to a gun, she said she thought the friend who went with her to purchase the drugs left
a gun in the car. (Tr. 238). Ms. Marrow claimed Appellant did not know the drugs
were in the vehicle and did not know she resumed using drugs (shortly after she was
released from a drug treatment facility in 2014); she said she hid the drugs from him
because he would take the children if he knew she relapsed. (Tr. 231-232). She
later learned at the police station that the vehicle had been reported stolen before
she purchased it. (Tr. 233).
{¶9} The jury found Appellant guilty of possessing heroin in an amount over
5 grams but less than 10 grams, a third-degree felony. See R.C. 2925.11(A),
(C)(6)(c). The court imposed a maximum sentence of 36 months in prison. Appellant
filed a timely notice of appeal from the October 20, 2016 sentencing entry.
SUFFICIENCY OF THE EVIDENCE
{¶10} Appellant sets forth four assignments of error. The second assignment
of error, which we are addressing first, provides:
“THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.”
{¶11} We address the sufficiency argument before the manifest weight
argument because if a conviction is not supported by sufficient evidence, the
defendant cannot be retried due to the attachment of jeopardy. State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) (unlike a case reversed on weight of
the evidence, which can be retried), citing Tibbs v. Florida, 457 U.S. 31, 41, 47, 102
 -4-

S.Ct. 2211, 72 L.Ed.2d 652 (1982). All evidence admitted, whether erroneously or
not, can be considered in determining whether the evidence was sufficient to sustain
a guilty verdict. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d
284, ¶ 16-20, citing Lockhart v. Nelson, 488 U.S. 33, 35, 38, 40-42, 109 S.Ct. 285,
102 L.Ed.2d 265 (1988).
{¶12} Whether the evidence is legally sufficient to sustain a conviction is a
question of law evaluating the adequacy of the evidence. Thompkins, 78 Ohio St.3d
at 386. An evaluation of a witness's credibility is not involved in a sufficiency review
as the question is whether the evidence, if believed, is sufficient (to support the
contested elements). State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767
N.E.2d 216, ¶ 79, 82. See also State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d
765 (2001). In other words, sufficiency involves the state's burden of production
rather than its burden of persuasion. See Thompkins, 78 Ohio St.3d at 390 (Cook,
J., concurring).
{¶13} In viewing a sufficiency of the evidence argument, the evidence and all
rational inferences are evaluated in the light most favorable to the prosecution. See
State v. Filiaggi, 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999); State v. Goff, 82
Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed on
grounds of sufficiency unless the reviewing court determines that no rational juror
could have found the elements of the offense proven beyond a reasonable doubt. Id.
The question is merely whether any rational mind could find the elements were
established by the direct and circumstantial evidence. See State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998) (placing emphasis on “any”).
{¶14} The elements of the pertinent drug offense are as follows: knowingly
obtain, possess, or use heroin. See R.C. 2925.11(A). The element regarding the
amount of heroin is not contested. “A person acts knowingly, regardless of purpose,
when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature.” R.C. 2901.22(B). “A person has
knowledge of circumstances when the person is aware that such circumstances
probably exist.” Id. “When knowledge of the existence of a particular fact is an
 -5-

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.
{¶15} Circumstantial evidence has the same probative value as direct
evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001). The
surrounding facts and circumstances can be used to determine a defendant’s intent,
whether he is considered the principal offender or a complicitor. Id. at 485; State v.
Johnson, 93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001). A person is complicit if,
acting with the kind of culpability required for the commission of an offense, he aids
or abets another in committing the offense. R.C. 2923.03(A)(2). See also R.C.
2923.03(F) (a person who is complicit can be prosecuted and punished as if he were
a principal offender, even if the charge is stated in terms of the principal offense).
{¶16} Possession can be individual or joint. Wolery, 46 Ohio St.2d at 332
(“Possession of stolen property may be individual or joint, actual or constructive.
Proof of control or dominion is essential. But control or dominion may be achieved
through the instrumentality of another.”). Even if the state cannot demonstrate a
defendant’s actual possession of an item, a defendant’s constructive possession is
sufficient. See State v. Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351 (1976).
“Constructive possession exists when an individual knowingly exercises dominion
and control over an object, even though that object may not be within his immediate
physical possession.” State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362
(1982), syllabus. See also Wolery, 46 Ohio St.2d at 329. The state must show the
defendant was “conscious” of the object's presence as the “mere fact that property is
located within premises under one's control does not, of itself, constitute constructive
possession.” Hankerson, 70 Ohio St.2d at 91.
{¶17} A corresponding statute defines possess or possession as: “having
control over a thing or substance, but may not be inferred solely from mere access to
the thing or substance through ownership or occupation of the premises upon which
the thing or substance is found.” R.C. 2925.01(K). Nevertheless, circumstantial
evidence can be relied upon to establish constructive possession and (as
 -6-

aforementioned) intent. Treesh, 90 Ohio St.3d at 485 (circumstantial evidence has
the same probative value as direct evidence); Hankerson, 70 Ohio St.2d at 91-92 (at
a time when circumstantial evidence had a stricter application). It is important to note
the law prohibits inferring possession “solely” from mere access to the substance
through ownership or occupation of the premises, but does not prohibit this inference
from being used to help establish possession in combination with other relevant facts.
See R.C. 2925.01(K).
{¶18} Appellant suggests by finding him guilty, the jury must have improperly
inferred his possession “solely from mere access” to the substance through his mere
occupation of the vehicle where the substance was found. He emphasizes the heroin
was not on his person and claims it was not within his immediate reach while he was
driving the vehicle, which belonged to another person who claimed the drugs
belonged to her.
{¶19} However, considering all of the evidence in the light most favorable to
the prosecution, a reasonable person could find Appellant knowingly possessed the
heroin. Appellant was driving the vehicle, which belonged to his girlfriend. He had
one passenger. They exhibited outward displays of nervousness in passing the
police cruiser. The heroin was in a salt container in the back of the vehicle. The
vehicle was an SUV (with no separated trunk compartment). Next to the salt
container was a child’s Minnie Mouse backpack containing what appeared to be
marijuana. Drugs in a moving vehicle and in containers such as used in this case
suggest Appellant’s conscious dominion or control over the heroin; the situation
suggests the drugs were intercepted by the officers mid-transport and there is no
indication the drugs belonged to the passenger. In any case, we need not rely on
merely these inferences as there is additional evidence.
{¶20} Appellant’s girlfriend arrived at the scene asserting the vehicle
belonged to her and was not stolen. Despite claiming anything illegal in the vehicle
belonged to her, she was (according to the officer’s testimony) unable to name
specific items such as the salt container or the heroin. In any event, “[t]he state was
not required to establish that Appellant owned the drugs, merely that they were in his
 -7-

constructive possession.” State v. Nichols, 7th Dist. No. 07 JE 50, 2009-Ohio-1027,
¶ 29. If Appellant had control of the heroin and was conscious of its presence, then
he had constructive possession, even if the heroin was being transported for
someone else or someone else owned it.
{¶21} Finally, the officer testified Appellant expressed shock when advised
the recovered heroin weighed over 7 grams -- until he learned this weight included
the bag, at which point Appellant expressed the heroin weighed closer to 6 grams.
The evidence, if believed, allowed a rational person to conclude Appellant knowingly
obtained or possessed the heroin found in the back of the SUV he was driving. Upon
viewing the evidence in the light most favorable to the prosecution, a rational juror
could have found the elements of the offense proven beyond a reasonable doubt.
This assignment of error is overruled.
WEIGHT OF THE EVIDENCE
{¶22} Appellant’s first assignment of error, which we moved to follow the
sufficiency argument, alleges:
“THE JURY’S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶23} Whereas a sufficiency review involves the state’s burden of production,
a weight of the evidence review involves the state's burden of persuasion.
Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring). Weight of the evidence
concerns “the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.” Id. at 387 (it depends on the
effect of the evidence in inducing belief but is not a question of mathematics).
{¶24} The appellate court is to review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses, and determine
whether, in resolving conflicts in the evidence, the jury 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. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387. This discretionary power of the
 -8-

appellate court is to be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction. Id.
{¶25} Where a criminal case has been tried by a jury, only a unanimous
appellate court can reverse on the ground that the verdict was against the manifest
weight of the evidence. Thompkins, 78 Ohio St.3d at 389, citing Section 3(B)(3),
Article IV of the Ohio Constitution. The power of the court of appeals to sit as the
“thirteenth juror” is limited in order to preserve the jury's role with respect to issues
surrounding the credibility of witnesses and the weight of the evidence. Thompkins,
78 Ohio St.3d at 387, 389.
{¶26} “[T]he weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The jury occupies the
best position from which to weigh the evidence and judge the witnesses' credibility by
observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We therefore generally
proceed under the premise that when there are two fairly reasonable views of the
evidence or two conflicting versions of events, neither of which is unbelievable, we do
not choose which one we believe is more credible. State v. Gore, 131 Ohio App.3d
197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶27} Appellant emphasizes the heroin was in the back of an SUV and
attempts to distinguish cases where the drugs were in closer proximity to the
defendant. See, e.g., State v. DeSarro, 7th Dist. No. 13 CO 39, 2015-Ohio-5470,
¶ 42-44 (drugs found under rock near where defendant was standing); State v.
Pankey, 7th Dist. No. 07 MA 2, 2008-Ohio-3091, ¶ 47 (defendant was “within feet of
the crack which was sitting on the kitchen counter poorly concealed within a book”).
Appellant points to the testimony of his fiancée and concludes her ownership claims
were worthy of belief as was her insistence that Appellant did not know about the
drugs. Appellant also complains the officer’s suggestion that he flung the drugs into
the back of the SUV after seeing the police cruiser was mere speculation as there
 -9-

was no testimony he did so. On the latter point, the officer did not opine that
Appellant flung the drugs into the back of the SUV. He was asked if it were possible
to fling an item from the front to the back in this vehicle, as opposed to a vehicle with
a separate trunk compartment. The question and answer did not cause the jury to
lose its way. Nor did an unobjected-to example of constructive possession provided
during voir dire.
{¶28} On the issue of credibility, the jury was able to see and hear the live
testimony presented by the officers and Appellant’s fiancée. Although his fiancée
testified she told the police her heroin was in the vehicle, the jury could choose to
believe the officer’s testimony that she did not specify she had heroin in the vehicle.
We note she testified she was under the influence when she arrived at the scene. It
was also within the jury’s province to reject her claim that she purchased the heroin
the prior night for herself, left it in her vehicle, and Appellant did not know about it.
She claimed to be hiding a heroin addiction from Appellant, who lived with her and
her nine minor children. The fact they shared their vehicles does not necessarily
support Appellant’s cause (as there is less incentive to use your car to hide drugs
from your paramour if you both drive that car).
{¶29} Lastly, the jury heard the officers testify about Appellant’s
pronouncements on the weight of the heroin upon arrival at the jail. The jury could
find their testimony credible. Appellant’s observations indicated he had knowledge of
the heroin in the vehicle. That is, Appellant seemed surprised the heroin weighed
over 7 grams and asked if the officer weighed the bag. Appellant expressed his
belief the heroin without the bag weighed just over 6 grams. According to the
testimony of a BCI scientist, the heroin (without the bag) weighed 6.3 grams. It was
not extraordinary for the jury to conclude Appellant was aware of the heroin and had
control over it as he drove it around.
{¶30} In sum, there was credible evidence Appellant knowingly possessed 6.3
grams of heroin. This is not the exceptional case where the evidence weighs heavily
against the conviction requiring a new trial. A manifest miscarriage of justice is not
 -10-

apparent, and there is no indication the jury lost its way in weighing evidence and
evaluating credibility. Consequently, this assignment of error is overruled.
SUPPRESSION & INEFFECTIVE ASSISTANCE OF COUNSEL
{¶31} Appellant contends the evidence derived from the inventory search
should have been suppressed. The same arguments concerning a police
department policy on opening closed containers are set forth in the third and fourth
assignments of error, which provide:
“THE TRIAL COURT ERRED AND COMMITTED PLAIN ERROR IN
ALLOWING THE ADMISSION OF EVIDENCE IN VIOLATION OF APPELLANT’S
FOURTH AMENDMENT RIGHTS.”
“APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL * * *
IN FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE * * *.”
{¶32} Appellant points out the drugs were found in closed containers within
the vehicle. The marijuana was found in a child’s backpack, and the heroin was
found in a salt container. Appellant claims the officers’ testimony as to the standard
procedure of the police department only explained the general departmental policy on
an inventory search before impound and did not specifically refer to a policy on
opening closed containers. He also suggests the search may have been motivated
by bad faith as the officer knew Appellant and the officer’s original interest in the
vehicle was due to mere allegations of staring and turning to look at the officers.
Appellant cites the Ohio Supreme Court’s Hathman case for the premise that a
closed container cannot be opened during an inventory search unless the search is
conducted in good faith and there is a standard practice or procedure at the pertinent
police department governing the opening of closed containers.
{¶33} In Hathman, the defendant filed a pretrial motion to suppress the
contents of a white plastic bag found during the inventory search of a vehicle; the bag
contained other small bags and a pill bottle which were also opened during the
search. At the suppression hearing, an officer testified the standard procedure of the
Ohio State Highway Patrol was to inventory the contents of an impounded vehicle
before towing to ensure nothing is lost or stolen from the vehicle while in police
 -11-

custody; the officer also said he was to open any locked vehicular compartments if
there was a key.
{¶34} The Court found the contents of the bag should have been suppressed
because there was no evidence “of any standardized policy or practice of the Ohio
State Highway Patrol specifically governing the opening of closed containers found
during inventory searches.” State v. Hathman, 65 Ohio St.3d 403, 408, 604 N.E.2d
743 (1992). The Court acknowledged an inventory search of a lawfully impounded
vehicle is a well-defined exception to the warrant requirement, which “derives from
the principle that valid inventory searches involve administrative caretaking functions
which serve important governmental interests in protecting property which is in police
custody, in ensuring against frivolous claims of loss, stolen or vandalized property,
and in guarding the police from danger.” Id. at 405-406, citing South Dakota v.
Opperman, 428 U.S. 364, 369-371, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
{¶35} Nevertheless, in order “[t]o satisfy the requirements of the Fourth
Amendment of the United States Constitution, an inventory search of a lawfully
impounded vehicle must be conducted in good faith and in accordance with
reasonable standardized procedure(s) or established routine.” Hathman, 65 Ohio
St.3d 403 at paragraph one of syllabus, citing Florida v. Wells, 495 U.S. 1, 110 S.Ct.
1632, 109 L.Ed.2d 1 (1990), Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93
L.Ed.2d 739 (1987), and Opperman, 428 U.S. 364. The Court concluded: “If, during
a valid inventory search of a lawfully impounded vehicle, a law-enforcement official
discovers a closed container, the container may only be opened as part of the
inventory process if there is in existence a standardized policy or practice specifically
governing the opening of such containers.” Hathman, 65 Ohio St.3d 403 at
paragraph two of syllabus, citing Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109
L.Ed.2d 1 (1990), and Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d
739 (1987).
{¶36} Although no suppression motion was filed, Appellant claims the trial
court committed plain error in admitting the evidence obtained in the inventory
search. “Plain errors or defects affecting substantial rights may be noticed although
 -12-

they were not brought to the attention of the court.” Crim.R. 52(B). “Notice of plain
error under Crim.R. 52(B) is to be taken 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, 720 (1990), quoting State v.
Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804 (1978), paragraph three of
the syllabus. An appellate court's invocation of plain error is discretionary and
requires the existence of an obvious error which affected substantial rights. State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23.
{¶37} The absence of testimony at trial on a specific policy governing the
opening of closed containers during a vehicle inventory search would not indicate to
a trial court that there was no such procedure. The state does not have an obligation
at trial to affirmatively show evidence was legally obtained in the absence of a motion
challenging the admission of the evidence. Hathman involved a motion to suppress
the evidence presented at the suppression hearing. It did not involve the failure to
file a suppression motion or an evaluation of an officer’s trial testimony on the policies
precipitating an inventory search.
{¶38} In one case, the defendant argued the trial court committed plain error
by not sua sponte suppressing evidence found in a closed container during an
inventory of a vehicle. Before overruling this argument, the Eighth District noted: the
officer testified in generalities about the department's policy to search an impounded
vehicle; he did not discuss any specifics about the policy; and a written copy of the
policy was not submitted. Nevertheless, the court concluded the officer’s testimony
“suggests that the search was pursuant to the department's policy and in satisfaction
of the department's caretaking functions.” State v. Jordan, 9th Dist. No. 27005,
2014-Ohio-2857, ¶ 23.
{¶39} Here, the vehicle Appellant was driving was reported as stolen in
Pennsylvania. Officer Trimble explained the vehicle had to be impounded because
Appellant was being arrested for driving under suspension and was suspected of
driving a stolen vehicle (and the passenger was being arrested on a warrant).
Appellant’s fiancée appears to have arrived to claim the vehicle after the inventory
 -13-

search began. In any event, the officers explained the policy requiring them to
impound the vehicle due to its status as having an active report of being stolen.
Officer Trimble testified, “When it’s reported stolen, it gets towed with a hold for auto
theft. And then, you know, our - - those detectives go in and figure out who it’s stolen
from and whatnot and everything like that.” (Tr. 142). He subsequently reiterated
they were unable to verify the vehicle was not stolen so the situation required further
investigation based on the prior police report. (Tr. 160). Officer Dunkle confirmed
they had no choice but to impound the vehicle because it had been reported stolen.
(Tr. 186-187).
{¶40} There is no indication the decision to impound the vehicle was
performed in bad faith. Appellant refers to the lack of a traffic violation and the mere
allegation he was acting nervous. However, the vehicle was stopped only after a
check on the vehicle’s registration showed it had been reported stolen. This
constitutes reasonable suspicion for a stop. See State v. Mays, 119 Ohio St.3d 406,
2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8, 22-24 (an officer's decision to stop a
motorist for a criminal violation, including a traffic violation, need only be supported
by a reasonable and articulable suspicion, not probable cause); Delaware v. Prouse,
440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) (“An officer may stop
a motor vehicle to check a driver's license or vehicle registration if the officer has an
articulable and reasonable suspicion that the motorist is unlicensed, the vehicle is
improperly registered, or it or its occupants are otherwise subject to seizure for
violating the law.”). See also State v. Campbell, 8th Dist. No. 83787, 2004-Ohio-
6858, ¶11 (officer had a reasonable, articulable suspicion to initiate a stop of a
vehicle where the state database showed it was reported as stolen).
{¶41} Regarding the inventory process, Officer Trimble testified the police
department had a procedural policy governing an inventory search: “Yes. As a
liability we do an administrative inventory of the auto to note anything what was in
there prior to us towing it. That way if something comes up missing or something like
that, you know, and everything that’s inventoried goes in there, you know, everything
of value and stuff like that, we put in the report.” (Tr. 142-143). He noted how the
 -14-

backpack contained a large item and how it could have contained a laptop. (Tr. 143).
As to the salt container with the hidden compartment in a false bottom, he pointed out
this is where “[s]ome people put, like, jewelry and stuff like that to hide it.” (Tr. 143).
Officer Dunkle confirmed a vehicle inventory was part of the standard operating
procedure “just to protect us.” (Tr. 187).
{¶42} The trial testimony suggested the impoundment and inventory search
was conducted in accordance with the police department’s standard policy. See
Jordan, 9th Dist. No. 27005 at ¶ 23. The failure of the trial court to sua sponte
suppress the evidence discovered when two closed containers were opened during
an inventory search was not plain error occurring during trial.
{¶43} Appellant also raises ineffective assistance of counsel in failing to file a
suppression motion challenging the inventory search. Defense counsel's failure to
file a motion to suppress does not constitute ineffective assistance of counsel per se.
State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65. The
failure to file a motion to suppress is subject to the standard two-pronged analysis for
evaluating claims of ineffective assistance of counsel as set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v.
Spaulding, __ Ohio St.3d __, 2016-Ohio-8126, __ N.E.3d __, ¶ 94, citing Kimmelman
v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Both
deficient performance and prejudice must be established. Strickland, 466 U.S. at
687. If the performance was not deficient, then there is no need to review for
prejudice, and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52
(2000).
{¶44} In addition to showing a reasonable probability that the result of the trial
would have been different if the evidence had been suppressed, the defendant who
complains about counsel’s failure to file a suppression motion must prove there was
a valid ground to suppress the evidence in dispute. Spaulding, __ Ohio St.3d __,
2016-Ohio-8126 at ¶ 94, citing Brown, 115 Ohio St.3d 55 at ¶ 65. “A claim of
ineffective assistance of counsel in a direct appeal must be established by the
evidence in the record.” State v. Carter, 7th Dist. No. 15 MA 0225, 2017-Ohio-7501,
 -15-

¶ 78, citing, e.g., State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001)
(if establishing ineffective assistance of counsel requires proof outside the record,
then such claim is not appropriately considered on direct appeal). See also State v.
Ishmail, 54 Ohio St.2d 402, 406, 377 N.E.2d 500 (1978) (the appellate court is limited
to what transpired as reflected by the record on direct appeal).
{¶45} Obviously, the outcome would have differed had the drugs been
suppressed. On the question of whether there was deficient performance and a
reasonable probability the suppression motion would have been granted, Appellant
states the officer only testified about a general policy requiring an inventory search
before towing an impounded vehicle and did not specifically cite to a particular policy
on the opening of closed containers.
{¶46} However, the officer did not state the police department lacked a
specific policy on the opening of closed containers, as he was not asked. At most,
the specifics of any policy for opening closed containers would be unknown. In such
a situation, we cannot presume there was no policy for these circumstances and thus
presume counsel was ineffective. See, e.g., State v. Eastridge, 9th Dist. No. 21068,
2002-Ohio-6999, ¶ 10 (cannot show ineffective assistance of counsel for failure to file
suppression of inventory results where it is “contended that it is possible that the
inventory search was procedurally defective because the [police department] may not
have had a procedure or policy in place that would allow [the officer] to open the
black bag containing the contraband.”). Rather, we are to defer to counsel’s
judgment and presume counsel’s decision fell within the wide range of professional
conduct. Strickland, 466 U.S. at 687 (“Judicial scrutiny of counsel's performance
must be highly deferential.”)
{¶47} Defense counsel may have known that particular police department had
a policy for opening closed containers and therefore decided not to call for a
suppression hearing merely to generate a record. Furthermore, as addressed supra,
the testimony that was presented at trial, in order to set the background of how the
officers came to find drugs in the vehicle, suggested the inventory search was
conducted in accordance with the standard department protocol. There is no
 -16-

indication counsel’s performance was deficient in failing to file a suppression motion
and there is no indication the motion would have been granted. For the foregoing
reasons, the record does not contain evidence of ineffective assistance of counsel,
plain error is not apparent, and these assignments of error are overruled.
{¶48} The trial court’s judgment is affirmed.

Donofrio, J.,concurs.

Waite, J., concurs.