State v. Jackson

[Cite as State v. Jackson, 2023-Ohio-4467.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )

STATE OF OHIO C.A. Nos. 21AP0017
21AP0020
Appellee

v.
APPEAL FROM JUDGMENT
TIMOTHY M. JACKSON ENTERED IN THE
WAYNE COUNTY MUNICIPAL COURT
Appellant COUNTY OF WAYNE, OHIO
CASE No. 2020 TR-C 005551

DECISION AND JOURNAL ENTRY

Dated: December 11, 2023

CARR, Judge.

{¶1} Defendant-Appellant Timothy Jackson, Sr., appeals the judgment of the Wayne

County Municipal Court. This Court affirms in part and reverses in part.

I.

{¶2} Following an October 2, 2020 traffic stop, a complaint was filed alleging that

Jackson violated R.C. 4511.19(A)(1)(a) and 4511.19(A)(2). In April 2021, additional charges

were filed alleging that Jackson violated R.C. 4511.19(A)(1)(j)(vii) and 4511.19(A)(1)(j)(viii)(I).

{¶3} The matter proceeded to a jury trial. The jury found Jackson guilty of the charges

and the trial court sentenced Jackson accordingly.

{¶4} Jackson has appealed, raising three assignments of error for our review.
 2

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE
FAILED TO ESTABLISH ON THE RECORD SUFFICIENT EVIDENCE TO
SUPPORT THE CHARGES LEVIED AGAINST MR. JACKSON[.]

{¶5} Jackson argues in his first assignment of error that there was insufficient evidence

to support his convictions. He limits his argument to two areas: (1) that the State failed to prove

that Jackson had a prior conviction as required under R.C. 4511.19(A)(2); and (2) that the State

failed to demonstrate the required amount of marijuana or marijuana metabolite in Jackson’s

blood.

{¶6} When reviewing the sufficiency of the evidence, this Court must review the

evidence in a light most favorable to the prosecution to determine whether the evidence before the

trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).

An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine 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. 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. at paragraph two of the syllabus.

{¶7} At trial, Sergeant Christian Wertz with the Smithville Police Department testified.

At the time of the October 2020 traffic stop, Sergeant Wertz was a patrol officer. Sergeant Wertz

indicated that, around 12:30 a.m., he was patrolling and came to be driving behind a vehicle that

did not have a visible license plate. He did not observe any driving infractions. Sergeant Wertz

initiated a traffic stop. Jackson was the driver of the vehicle, and his girlfriend was the passenger.

Sergeant Wertz noticed the odor of an alcoholic beverage coming from the vehicle as well as
 3

Jackson himself and observed that Jackson’s eyes were slightly red and glossy. Sergeant Wertz

was able to discern that the odor was coming from Jackson as well because, when Sergeant Wertz

asked Jackson to step outside the vehicle, Sergeant Wertz could still smell the odor coming from

Jackson. Sergeant Wertz described the odor as being moderate but acknowledged later in his

testimony that he had described it in the search warrant as being strong. According to Sergeant

Wertz, Jackson stumbled slightly into the middle of the roadway after exiting the vehicle. Sergeant

Wertz put his arm out a little bit for Jackson so that he did not fall over. Sergeant Wertz also

noticed that Jackson’s speech was slightly slurred.

{¶8} Jackson denied drinking alcohol. Jackson stated he had been at school and was

picking up his girlfriend from work and was on his way home. Sergeant Wertz then asked Jackson

to perform field sobriety testing which Jackson agreed to.

{¶9} Sergeant Wertz indicated that he observed all six clues in the horizontal gaze

nystagmus test, two clues out of eight in the walk and turn test, and three out of four clues in the

one-legged stand test. As to the clues Jackson exhibited during the field sobriety testing, they

included being unable to balance during the instructional phase, starting the test too soon, swaying,

putting his foot down, and using his arms for balance. Sergeant Wertz averred that the results

indicated to him that it was more likely than not that Jackson was under the influence of alcohol

and or drugs. Jackson was placed under arrest and offered a breath test, which he refused.

{¶10} Sergeant Wertz testified that he looked up Jackson’s driving history in LEADS and

the LEADS report was admitted into evidence. Sergeant Wertz testified that Jackson had a prior

OVI conviction in 2012. Sergeant Wertz also printed out a copy of the journal entry from the prior

OVI case and that was marked as an exhibit and was also admitted into evidence. Defense counsel

objected to the use of the judgment entry. Neither record is a certified copy.
 4

{¶11} Sergeant Wertz advised Jackson of the increased penalties that would apply in light

of the prior conviction if Jackson continued to refuse a breath test, but Jackson continued to refuse.

Sergeant Wertz then procured a search warrant for a sample of Jackson’s blood. The blood draw

was conducted at the hospital and testing was carried out on the sample. Sergeant Wertz indicated

that, at the hospital, Jackson seemed extremely paranoid. Sergeant Wertz explained that he was

taught in training that marijuana does make some people paranoid. Sergeant Wertz received a

report of the results, and a notarized copy was admitted into evidence. Defense counsel did not

object to Sergeant Wertz’s discussion of the report.

{¶12} Sergeant Wertz indicated that what the report refers to as THC is marijuana

metabolite. The report listed the THC metabolite concentration as 40.49 ng/ml +/- 2.83 ng/ml and

the THC concentration as 6.86 ng/ml +/- .68 ng/ml. An additional report which was admitted into

evidence without objection demonstrated that alcohol was present in Jackson’s blood.

{¶13} On appeal, Jackson has only raised two issues with respect to his sufficiency

challenge, and the Court will limit its discussion accordingly.

{¶14} First, Jackson argues that the State failed to prove that Jackson had a prior

conviction as required under R.C. 4511.19(A)(2). The State has conceded error on this point.

{¶15} Former R.C. 4511.19(A)(2) states:

No person who, within twenty years of the conduct described in division (A)(2)(a)
of this section, previously has been convicted of or pleaded guilty to a violation of
this division, a violation of division (A)(1) or (B) of this section, or any other
equivalent offense shall do both of the following:

(a) Operate any vehicle, streetcar, or trackless trolley within this state while under
the influence of alcohol, a drug of abuse, or a combination of them;

(b) Subsequent to being arrested for operating the vehicle, streetcar, or trackless
trolley as described in division (A)(2)(a) of this section, being asked by a law
enforcement officer to submit to a chemical test or tests under section 4511.191 of
the Revised Code, and being advised by the officer in accordance with section
 5

4511.192 of the Revised Code of the consequences of the person’s refusal or
submission to the test or tests, refuse to submit to the test or tests.

{¶16} Thus, “[t]here are three elements of a charge brought pursuant to R.C.

4511.19(A)(2): (1) a DUI conviction within 20 years of the current violation, (2) operation of a

motor vehicle while under the influence of alcohol or drugs, and (3) a refusal to submit to a

chemical test while under arrest for the current DUI.” State v. Hoover, 123 Ohio St3d 418, 2009-

Ohio-4993, ¶ 13. “Where the existence of a prior offense is an element of a subsequent crime, the

State must prove the prior conviction beyond a reasonable doubt.” State v. Leasure, 4th Dist. Ross

No. 15CA3484, 2015-Ohio-5327, ¶ 35.

{¶17} Here the state attempted to comply with R.C. 2945.75(B) to establish Jackson’s

prior conviction. The statute provides in relevant part:

(1) Whenever in any case it is necessary to prove a prior conviction, a certified copy
of the entry of judgment in such prior conviction together with evidence sufficient
to identify the defendant named in the entry as the offender in the case at bar, is
sufficient to prove such prior conviction.

(2) Whenever in any case it is necessary to prove a prior conviction of an offense
for which the registrar of motor vehicles maintains a record, a certified copy of the
record that shows the name, date of birth, and social security number of the accused
is prima-facie evidence of the identity of the accused and prima-facie evidence of
all prior convictions shown on the record. The accused may offer evidence to rebut
the prima-facie evidence of the accused's identity and the evidence of prior
convictions. Proof of a prior conviction of an offense for which the registrar
maintains a record may also be proved as provided in division (B)(1) of this section.

{¶18} However, the records that the State produced were not certified copies and thus fail

to satisfy the statute. While the foregoing is not the only method to establish the existence of a

prior conviction, see State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, ¶ 22, this is the only

method the State attempted to employ in this case. Thus, we agree with the State’s concession.

See State v. Umstead, 5th Dist. Holmes No. 16 CA 004, 2017-Ohio-8756, ¶ 28. The first portion
 6

of Jackson’s assignment of error is sustained as the State did not meet its burden to establish that

Jackson was guilty of violating R.C. 4511.19(A)(2).

{¶19} Jackson additionally contends that the State failed to establish the amount of

marijuana or marijuana metabolites in Jackson’s blood as Sergeant Wertz should not have been

able to testify about the results as he did not perform the testing and was not an expert.

{¶20} First, we note that Jackson did not object to Sergeant Wertz’s testimony about the

results and has not argued plain error on appeal. Further, we note that, in reviewing the sufficiency

of the evidence, we are charged with considering all of the evidence admitted at trial, even if it

was improperly admitted. See State v. Carano, 9th Dist. Summit No. 26544, 2013-Ohio-1633, ¶

37. Moreover, the laboratory results were admitted as an exhibit and Jackson has not demonstrated

that those results were insufficient to establish the challenged elements of the offenses at issue.

See R.C. 4511.19(E).

{¶21} Jackson’s first assignment of error is sustained in part and overruled in part.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN THE COURT
ALLOW[ED] THE OFFICER TO TESTIFY REGARDING FIELD SOBRIETY
TEST[S].

{¶22} Jackson argues in his second assignment of error that the trial court erred in

allowing the results of the field sobriety tests into evidence as there was not sufficient evidence

presented that they were conducted in substantial compliance with NHTSA standards.

{¶23} We conclude that Jackson has not preserved a challenge to this issue as he failed to

file a motion to suppress.

{¶24} “A Crim.R. 12(C)(3) motion to suppress evidence is the proper vehicle to challenge

the admissibility of evidence to prove an OMVI charge on a claim that it was not procured pursuant
 7

to applicable standards or regulations.” (Internal quotations and citations omitted.) State v.

Beavers, 11th Dist. Ashtabula No. 2019-A-0028, 2020-Ohio-69, ¶ 15; see also State v. French, 72

Ohio St.3d 446, 449-451 (1995); State v. Jones, 9th Dist. Medina No. 17CA0070-M, 2019-Ohio-

60, ¶ 5-6 (noting that an alleged lack of substantial compliance with NHTSA standards is a proper

basis for a motion to suppress). A failure to challenge whether field sobriety tests were

administered in substantial compliance with NHTSA standards is waived if not raised in a motion

to suppress. Beavers at ¶ 17. Accordingly, Jackson cannot now challenge this issue on appeal.

{¶25} Jackson’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

MR. JACKSON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY SECTION 10, ARTICLE I, OF THE OHIO
CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENT OF
UNITED STATES CONSTITUTION.

{¶26} Jackson argues in his third assignment of error that he received ineffective

assistance of counsel. Specifically, Jackson asserts that trial counsel was ineffective in failing to

file a motion to suppress.

{¶27} In order to prevail on a claim of ineffective assistance of counsel, Jackson must

show that trial “counsel’s performance fell below an objective standard of reasonableness and that

prejudice arose from counsel’s performance.” State v. Reynolds, 80 Ohio St.3d 670, 674 (1998),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Jackson must show that counsel’s

performance was objectively deficient by producing evidence that counsel acted unreasonably.

State v. Keith, 79 Ohio St.3d 514, 534 (1997), citing Strickland at 687. Second, Jackson must

demonstrate that but for counsel’s errors, there is a reasonable probability that the results of the

trial would have been different. Keith at 534.
 8

{¶28} “Failing to file a motion to suppress does not constitute ineffective assistance of

counsel per se. As this Court has stated, [c]ounsel’s decision not to file a motion to suppress may

be a matter of trial strategy, including counsel’s reasonable assessment of whether such a motion

is likely to succeed and recognition that filing a motion to suppress has risks.” (Internal quotations

and citations omitted.) State v. Sampson, 9th Dist. Wayne No. 22AP0026, 2023-Ohio-2342, ¶ 44.

“In cases where counsel completely failed to file a motion to suppress, this Court has held that, in

order to prove ineffective assistance of counsel, ‘a defendant must prove that there was a basis to

suppress the evidence in question. [And, i]n order to show prejudice, a defendant must

demonstrate that there was a reasonable probability that the motion to suppress would have been

granted.’” State v. Atkinson, 9th Dist. Lorain No. 19CA011466, 2020-Ohio-315, ¶ 16, quoting

State v. Payne, 9th Dist. Lorain No. 18CA011383, 2019-Ohio-4218, ¶ 25.

{¶29} First, Jackson asserts that trial counsel should have filed a motion to suppress

because the officer lacked reasonable suspicion to stop Jackson’s vehicle. Jackson was stopped

because Sergeant Wertz did not observe a visible license plate when he was following the vehicle

Jackson was driving. See R.C. 4503.21. When questioned about whether there was a license plate,

Sergeant Wertz indicated that upon further inspection there was. He testified at trial that, “upon

walking up behind [the] vehicle there was a license, or a temporary license plate. The way it was

sitting in his mirror, between the dust and soot on his back windshield and it was also behind the

actual windshield wiper so it was unable to be visible from like a patrol car, unless you were

standing right behind it.” Given the testimony at trial, we cannot say that Jackson demonstrated

that the officer lacked reasonable suspicion to stop the vehicle such that his trial counsel was

ineffective in failing to file a motion to suppress as to that issue. See State v. Flack, 3d Dist. Union

No. 14-22-24, 2023-Ohio-1705, ¶ 16.
 9

{¶30} In addition, Jackson maintains that trial counsel was ineffective in failing to file a

motion to suppress because the officer should not have continued to detain Jackson after the officer

confirmed that Jackson had a valid temporary tag.

{¶31} “Not only must the State present facts to justify the initial stop, the State must also

present facts that justify the duration of the seizure. When one has been detained so that the police

may investigate a traffic violation, the police may detain the individual for the length of time

necessary to check the driver’s license and registration, and the vehicle’s license plates.” (Internal

quotations and citations omitted.) State v. Williams, 9th Dist. Lorain No. 09CA009679, 2010-

Ohio-3667, ¶ 15. However, “[i]f, during the investigation of the events that gave rise to the initial

stop, the officer discovers additional facts from which it is reasonable to infer additional criminal

activity[,] the officer is permitted to lengthen the duration of the stop to investigate such

suspicions.” Id.

{¶32} Here, at trial, there was evidence that when Sergeant Wertz initially approached the

vehicle, he noticed an odor of alcohol coming from the vehicle and Jackson himself and observed

that Jackson’s eyes were slightly red and glossy. Sergeant Wertz continued to note indications of

possible impairment during the stop as discussed above. Jackson has not demonstrated that trial

counsel was ineffective in failing to file a motion to suppress based on the length of Jackson’s

detention.

{¶33} Finally, Jackson asserts that trial counsel was ineffective in failing to file a motion

to suppress challenging the admission of the results of the field sobriety tests.

{¶34} Jackson argues that, at trial, Sergeant Wertz appeared unsure of the NHTSA

standards and without testifying about the standards and how he substantially complied with them

the results would have had to be suppressed. See R.C. 4511.19(D)(4)(b) (discussing when an
 10

officer may testify about the results of field sobriety testing). We are not persuaded by Jackson’s

argument which relies heavily on speculation. “[S]peculation is insufficient to establish ineffective

assistance.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 217; see also State v. Short,

129 Ohio St.3d 360, 2011-Ohio-3461, ¶ 119. While Sergeant Wertz expressed uncertainty at trial

about some aspects of his training related to field sobriety testing, it is unlikely that Sergeant Wertz

was anticipating having to defend the same at trial; as noted above, the appropriate mechanism to

litigate this issue is through a motion to suppress followed by a suppression hearing. See Beavers

at ¶ 15-17. Moreover, at trial, Jackson was willing to stipulate to Sergeant Wertz’s training,

qualifications, and experience belying his contention that Sergeant Wertz was unqualified to

perform the testing at issue. We cannot say that Jackson has demonstrated that Sergeant Wertz’s

testimony at a suppression hearing would have been similar to his testimony at trial, particularly

given the different functions of each proceeding.

{¶35} Additionally, we note that, even if the field sobriety tests were subject to

suppression, there has been no demonstration that the remaining evidence, including the odor of

alcohol, Jackson’s slightly red, glossy eyes, slight slurring of speech, and stumbling, would be

insufficient to establish probable cause to arrest Jackson. Further, Sergeant Wertz’s observations

of Jackson during the field sobriety testing could be considered in determining whether probable

cause existed even if the actual results of the test were excluded. See State v. Protsman, 9th Dist.

Summit No. 28778, 2018-Ohio-3927, ¶ 15.

{¶36} Jackson’s third assignment of error is overruled.

III.

{¶37} Jackson’s first assignment of error is sustained in part and overruled in part. The

remaining assignments of error are overruled. The judgment of the Wayne County Municipal
 11

Court is affirmed in part, reversed in part, and the matter is remanded for proceedings consistent

with this decision.

Judgment affirmed in part,
reversed in part,
and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, 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 equally to both parties.

DONNA J. CARR
FOR THE COURT

SUTTON, P. J.
HENSAL, J.
CONCUR.
 12

APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

ANGELA WYPASEK, Prosecuting Attorney, and JONATHAN HAMERS, Assistant Prosecuting
Attorney, for Appellee.