[Cite as State v. Nichols, 2023-Ohio-4364.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO, CASE NO. 17-22-08
PLAINTIFF-APPELLEE,
v.
DARREN A. NICHOLS, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 21CR000272
Judgment Affirmed
Date of Decision: December 4, 2023
APPEARANCES:
Samuel Saul Richardson for Appellant
Timothy S. Sell for Appellee
Case No. 17-22-08
MILLER, P.J.
{¶1} Defendant-appellant, Darren A. Nichols (“Nichols”), appeals the June
28, 2022 judgment of the Shelby County Court of Common Pleas. For the reasons
that follow, we affirm the judgment of the trial court.
Background
{¶2} On August 27, 2021, Officer James Jennings (“Officer Jennings”) was
conducting traffic patrol when he observed a motorcycle pass him without a license
plate displayed. Officer Jennings attempted to initiate a traffic stop; however, the
motorcycle, driven by Nichols, failed to comply. A pursuit ensued which lasted
approximately 15 miles and reached speeds as high as 110 miles per hour. The
pursuit ended when Nichols’s motorcycle and Officer Jennings’s patrol vehicle
collided. First responders examining Nichols found a pouch of methamphetamine
in Nichols’s pants.
{¶3} On September 16, 2021, the Shelby County Grand Jury indicted
Nichols on four counts: Count One of failure to comply with an order or signal of a
police officer in violation of R.C. 2921.331(B), a third-degree felony; Count Two
of felonious assault in violation of R.C. 2903.11(A)(2), a first-degree felony; Count
Three of aggravated possession of drugs in violation of R.C. 2925.11(A), a third-
degree felony; and Count Four of vandalism in violation of R.C. 2909.05(B)(2), a
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fifth-degree felony. Nichols appeared for arraignment on November 1, 2021 where
he entered not guilty pleas.
{¶4} The parties exchanged discovery requests. On November 4, 2021,
Nichols filed a request for supplemental discovery. In his filing, Nichols requested
“any standard operating procedures or other internal guidance as to accepted norms
in chasing motorcycles that flee.” (Doc. No. 30). Nichols’s trial counsel indicated
that he previously sent an email to the State requesting the same and did not receive
a response. On March 15, 2022, Nichols filed a motion to compel discovery seeking
the trial court to compel the State to produce operating procedures relating to
pursuing fleeing motorcycles. The following day, the State filed its opposition to
Nichols’s motion to compel. The State specified that it did not believe the requested
information was relevant to any issue related to the instant charges. The State also
indicated that it sent a letter to defense counsel on November 10, 2021 requesting
information and case law supporting the defense’s position. Yet, it received no
response to its request. In a judgment entry filed on March 21, 2022, the trial court
denied Nichols’s motion to compel. The trial court stated that Nichols had not
demonstrated how the information he sought falls into the itemized categories of
Crim.R. 16 or how the information would have been be favorable to Nichols and
material to guilt or punishment.
{¶5} A jury trial commenced on May 10, 2022. Prior to the case being
submitted to the jury, the State dismissed Count Four (vandalism). The jury
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returned verdicts of guilty on Count One (failure to comply with an order or signal
of a police officer) and Count Three (aggravated possession of drugs), and not guilty
of Count Two (felonious assault). The court accepted the verdicts and ordered a
presentence evaluation.
{¶6} At the sentencing hearing held on June 27, 2022, the trial court
sentenced Nichols to 24 months in prison on Count One and 12 months in prison on
Count Three. The trial court ordered the sentences to run consecutively to each
other for an aggregate term of 36 months in prison. The trial court filed its judgment
entry of sentence on the following day.
{¶7} On September 12, 2022, Nichols filed his notice of appeal. He raises
two assignments of error for our review.
First Assignment of Error
The trial court erred in denying defense’s motion to compel
discovery.
{¶8} In his first assignment of error, Nichols argues that the trial court erred
by denying his motion to compel discovery. Specifically, Nichols argues the trial
court erred by not requiring the State to produce “any standard operating procedures
or other internal guidance as to accepted norms in chasing motorcycles that flee.”
(Doc. No. 72).
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Standard of Review
{¶9} “We review a trial court’s decision on a motion to compel discovery
under an abuse of discretion standard.” State v. Wilkie, 3d Dist. Auglaize No. 2-17-
01, 2017-Ohio-1487, ¶ 28. An abuse of discretion implies the trial court acted
unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151,
157-158 (1980).
Relevant Law
{¶10} Crim.R. 16(B)(5) requires that, “[u]pon receipt of a written demand
for discovery by the defendant” the prosecuting attorney must disclose “[a]ny
evidence favorable to the defendant and material to guilt or punishment[.]” In
regulating the discovery process, Crim.R. 16(L)(1) provides that “[t]he trial court
may make orders regulating discovery not inconsistent with this rule.” “If at any
time during the course of the proceedings it is brought to the attention of the court
that a party has failed to comply with this rule or with an order issued pursuant to
this rule, the court may order such party to permit the discovery or inspection, grant
a continuance, or prohibit the party from introducing in evidence the material not
disclosed, or it may make such other order as it deems just under the circumstances.”
Id. “Prosecutorial violations of Crim.R. 16 are reversible only when there is a
showing that: (1) the prosecutor’s failure to disclose was a willful violation of the
rule; (2) knowledge of the information would have benefited the accused in the
preparation of the defense; and (3) the accused suffered some prejudicial effect.”
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State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 16, citing State
v. Joseph, 73 Ohio St.3d 450, 458 (1995).
{¶11} “Prosecutors have ‘a duty to learn of any favorable evidence known
to the others acting on the government’s behalf in the case, including the police.’”
(Emphasis sic.) State v. Sanders, 92 Ohio St.3d 245, 261 (2001), quoting Kyles v.
Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567 (1995). “Yet even so, in order to
invoke a right to disclosure, or a concomitant prosecutorial duty to search records,
a defendant must make a preliminary showing that the requested files actually
contain material, exculpatory information.” Id. “He ‘may not require the trial court
to search through [a state agency’s] file without first establishing a basis for his
claim that it contains material evidence.’” Id., quoting Pennsylvania v. Ritchie, 480
U.S. 39, 58, fn. 15, 107 S.Ct. 989, 1002 (1987).
Analysis
{¶12} Nichols alleges that the City of Sidney Police Department’s vehicle-
pursuit policy was relevant and would have aided his defense. Yet, Nichols failed
in both his discovery request and his motion to compel to provide the State or the
trial court with any argument to show that the requested vehicle-pursuit policy was
relevant or actually contained exculpatory material. Rather, Nichols submitted no
facts to the trial court or the State to indicate that exculpatory material existed in the
information Nichols sought to compel. On appeal, Nichols contends the vehicle-
pursuit policy was directly related to the jury’s finding that his operation of the
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motorcycle caused a substantial risk of serious physical harm and that his conduct
was more serious than conduct normally constituting the offense. Nichols offers no
explanation or legal support for this premise, and we find no connection between
the vehicle-pursuit policy and the substantial risk of serious physical harm or the
seriousness of Nichols’s conduct.
{¶13} Here, Nichols does not allege Officer Jennings lacked the authority to
initiate a traffic stop. Even assuming that the procedures and policy Nichols seeks
stated that Officer Jennings should have called off the pursuit at some point in the
interest of safety, the procedures and policy Nichols seeks do not control Nichols’s
conduct. Thus, any policy in place regarding vehicle-pursuit policies in chasing
motorcycles would not constitute a legal defense to failure to comply with an order
or signal of a law enforcement officer or aggravated possession of drugs. Any
protocol that law enforcement officers breached while pursuing Nichols’s
motorcycle once he decided to flee has no bearing on Nichols’s culpability for
failing to comply or possessing methamphetamine. Accordingly, the operating
procedures or internal guidance would not be relevant to Nichols’s defense. See
State v. Simonis, 3d Dist. Seneca No. 13-14-05, 2014-Ohio-5091, ¶ 40.
{¶14} Nichols contends that the information sought may have aided his trial
counsel in preparing for the trial or the sentencing hearing. However, “materiality
does not refer to defendant’s ability to prepare for trial.” State v. Owens, 3d Dist.
Marion No. 9-16-40, 2017-Ohio-2590, ¶ 29.
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{¶15} Accordingly, we do not find that the trial court abused its discretion
by denying Nichols’s motion to compel.
{¶16} Nichols’s first assignment of error is overruled.
Second Assignment of Error
The trial counsel was ineffective.
{¶17} In his second assignment of error, Nichols argues his trial counsel was
ineffective for: (1) failing to properly pursue the motion to compel discovery; (2)
failing to obtain the requested discovery through alternative means; and (3) failing
to question a witness regarding the information he sought in the motion to compel
discovery. For the reasons that follow, we disagree.
Relevant Law
{¶18} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
counsel’s performance was deficient or unreasonable under the circumstances; and
(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d
303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052
(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
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prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic decisions, even if unsuccessful, do not generally constitute
ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989).
{¶19} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
Analysis
{¶20} Nichols argues that his trial court was ineffective for (1) failing to
properly pursue the motion to compel discovery; (2) failing to obtain the requested
discovery through alternative means; and (3) failing to question a witness regarding
the information he sought in the motion to compel discovery. All three claimed
deficiencies relate back to the City of Sidney Police Department’s vehicle-pursuit
policy, a matter we addressed in detail in our analysis of Nichols’s first assignment
of error.
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{¶21} Nichols first argues his trial counsel was ineffective for failing to
properly pursue his motion to compel discovery. Nichols contends his trial counsel
did not argue with specificity how the requested information was relevant, including
with supporting case law. “A claim of ineffective assistance of trial counsel may
exist where the record shows that the defendant’s attorney failed to conduct a
reasonable investigation into a defendant’s case.” State v. Anders, 3d Dist. Hancock
No. 5-16-27, 2017-Ohio-2589, ¶ 66. “‘However, where proof outside the record is
required to support a claim of ineffective assistance of trial counsel, the claim is
“purely speculative and * * * ‘it is not appropriate for consideration on direct
appeal.’”’” Id., quoting State v. Kennard, 10th Dist. Franklin No. 15AP-766, 2016-
Ohio-2811, ¶ 23, quoting State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-
Ohio-3072, ¶ 5. However, as we noted in our analysis of Nichols’s first assignment
of error, the information that his trial counsel requested in the motion to compel was
not material or relevant to Nichols’s defense. Moreover, the record does not indicate
the information contained in the vehicle-pursuit policy would have been in any way
favorable to Nichols. Thus, Nichols’s argument is entirely speculative and, thus,
will not form the basis of a valid ineffective assistance of counsel claim. State v.
Jenkins, 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 31 (“speculation is
insufficient to establish the prejudice component of an ineffective assistance of
counsel claim”). Furthermore, to the extent Nichols argues the requested
information would be relevant to mitigating his punishment, we likewise find his
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argument speculative. State v. Riggleman, 5th Dist. Licking No. 16-CA-9, 2016-
Ohio-5179, ¶ 13. Nichols’s argument that his trial counsel was ineffective for
failing to obtain the requested discovery through alternative means also fails for
being wholly speculative. See State v. Keith, 79 Ohio St.3d 514, 534 (1997).
{¶22} Finally, we address Nichols’s argument that his trial counsel was
ineffective for failing to question Officer Jennings as to whether any vehicle-pursuit
policy exists. “‘The extent and scope of cross-examination clearly fall within the
ambit of trial strategy, and debatable trial tactics do not establish ineffective
assistance of [trial] counsel.’” State v. Cooperstein, 12th Dist. Warren No. CA2018-
09-117, 2019-Ohio-4724, ¶ 29, quoting State v. Leonard, 104 Ohio St.3d 54, 2004-
Ohio-6235, ¶ 146. Again, Nichols’s argument assumes the vehicle-pursuit policy
would be helpful to his defense, and is, thus, speculative. Had Nichols’s trial
counsel asked more questions, there is no indication that Officer Jennings’s answers
would have been helpful or resulted in not-guilty verdicts or a reduced sentence.
State v. Laws, 3d Dist. Allen No. 1-20-10, 2021-Ohio-166, ¶ 49.
{¶23} Furthermore, at trial, Nichols’s trial counsel did, in fact, question
Officer Jennings regarding different tactics law enforcement officers use when
engaged in a pursuit of a fleeing suspect. (May 10, 2022 Tr. at 168-170). Nichols’s
counsel also confirmed that Officer Jennings had authority and discretion to
terminate the pursuit if circumstances became too dangerous but, did not find the
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need to do so in his pursuit of Nichols. (Id. at 170-171). Accordingly, we find that
Nichols’s final argument also fails.
{¶24} Nichols’s second assignment of error is overruled.
Conclusion
{¶25} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Shelby County Court
of Common Pleas.
Judgment Affirmed
WILLAMOWSKI and WALDICK, J.J., concur
/eks
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