[Cite as State v. George , 2018-Ohio-3930.]

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

STATE OF OHIO Appellee

v. TYILER J. GEORGE Appellant C.A. No. 17CA0034-M

APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO CASE No. 16TRC06108

DECISION AND JOURNAL ENTRY Dated: September 28, 2018

SCHAFER, Presiding Judge. {¶1} Defendant-Appellant Tyiler George appeals from the judgment of the Medina Municipal Court. For the reas ons set forth below, we affirm.

I. {¶2} Shortly before three o’clock on the morning of November 6, 2016, Medina County Deputy Sheriff, Douglas Clinage, initiated a traffic stop of the vehicle driven by Mr. George. Deputy Clinage stopped the vehicle ba sed on his observation of erratic driving and several traffic violations, including: multiple instances of the vehicle crossing over the marked lanes of the road, the vehicle jerking back into the lane, abruptly braking, traveling at varying speeds below the speed limit, and failing to properly navigate a left-hand turn. After Deputy Clinage initiated the stop, Mr. George parked his ve hicle in the middle of th e traffic lane, rather than using his signal or attempting to pull off to the side of the road.2

{¶3} Upon approaching the vehicle, Deputy C linage detected an odor of alcohol emanating from Mr. George’s breath, and noticed that Mr. George had “bloodshot, glassy eyes” and that he was avoiding making eye contact. Mr. George informed Deputy Clinage that he had consumed three alcoholic beverages over the co urse of a few hours prior to the stop. After conducting field sobriety tests, Deputy Clinage placed Mr. George under arrest and transported him to the Medina County Sheriff’s office. {¶4} Mr. George was charged with operating a vehicle while under the influence in violation R.C. 4511.19(A)(1)(a), and for failure to operate on the right half of the roadway in violation of R.C. 4511.26(A). He entered a plea of not guilty to the charges and the matter ultimately proceeded to a jury trial. The jury found Mr. George guilty on both counts, and the

trial court entered his convictions and sentenced him accord ing to law. Mr. George has appealed, raising one assignme nt of error for our review.

II. Assignment of Error [Mr. George] was denied the effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights when his trial counsel failed to timely file a motion to suppress evidence of the standardized field sobriety tests, failed to move for acquittal at th e close of the State’s case and at the close of all the evidence, failed to cross-examine the deputy on administration of the tests, and failed to object to the deputy’s opinion testimony that, based on the field sobriety tests, he believed that [Mr. George] was under the influence of alcohol. {¶5} Mr. George asserts in his first assignme nt of error that his trial counsel was ineffective for failing to file a timely motion to s uppress evidence of field sobriety tests, failing to move for acquittal, failing to cross-examine the deputy on the administration of the field sobriety tests, and failing to object to the deputy’s opinion testimony that—based on the field sobriety tests—he believed Mr . George was under the influence of alcohol. We disagree.3

{¶6} To establish ineffective assistance of c ounsel, Mr. George must demonstrate (1) that counsel’s performance was defi cient, in that “counsel made er rors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2)

that counsel’s deficient performance prejudiced the defense and depr ived defendant of a fair trial. Strickland v. Washington , 466 U.S. 668, 687 (1984). “To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel ’s errors, the result of the trial would have

been different.” State v. Bradley , 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. However, “a court must indulge a strong presum ption that counsel’s conduct falls within the wide range of reasonable prof essional assistance; that is, th e defendant must overcome the presumption that, under the circum stances, the challenged action ‘might be considered sound trial strategy.’” Strickland at 689, quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955). This Court “need not address both prongs of the Strickland test should it find that [Mr. George] failed to prove either.” State v. Ray , 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.

A. Objection to officer’s opinion {¶7} Mr. George argues that trial counsel was ineffective based upon his failure “to object to [Deputy Clinage]’s testimony that, based on his administration of the [field sobriety tests], he believed that Mr. George was under the influence of alcohol.” Mr. George contends that this failure to object was “plain error” because field sobriety tests do not show impairment, but, “[o]n the contrary, they show the likelihood that somebody would test over .08 BAC upon the number of clues observed by the officer.” {¶8} His argument implies that the administration of field sobriety tests is somehow limited to establishing the probability that an individual’s blood alcohol concentration will4

exceed the legal limit. Thus, Mr. George suggests that in a case such as this, where blood alcohol concentration may not be at issue, an o fficer may not testify as to his belief that an

individual was under the influence based on his ad ministration of field s obriety tests. Mr. George appears to base this cla im on a study he cited in footnote f our of his brief, which was not otherwise made part of this recor d. He cites that study to state that standardized field sobriety tests were developed to provide reliable indications of a driv er’s blood alcohol concentration, rather than indications of driving impairment. {¶9} Mr. George has not directed this Court to any relevant legal authority to support

his claim that an individual’s performance on field sobriety tests cannot be used to establish his impairment, or that an arresting officer may not testify as to his observations or offer his opinion in that regard. Mr. George has not developed an argument to de monstrate that the testimony of Deputy Clinage was improper, nor has he established that tria l counsel’s failure to object constitutes deficient performance. Furthermore, Mr. George has not demonstrated that the

outcome of the trial would have been different if counsel objected to the officer’s opinion and, therefore, we cannot conclude that trial counsel was ineffective on this basis.

B. Cross-examination of officer {¶10} Mr. George also argues that trial couns el’s performance was deficient because he failed to sufficiently ch allenge the field sobriety tests upon cr oss-examination of Deputy Clinage. Mr. George asserts that “[c]ounsel could have an d should have pointed out the deputy’s lack of instructions and improper instructions on the admini stration of the field sobriety tests as argued herein.” In support of this argument, Mr. Geor ge suggests examples of questions that trial counsel could have asked Deputy Clinage in an e ffort to establish that Deputy Clinage failed to give Mr. George certain instructions durin g the administration of those tests.5

{¶11} “‘The extent and scope of cross-examination clearly fall within the ambit of trial strategy, and debatable trial t actics do not establish ineffec tive assistance of counsel.’” State v.

Butler , 9th Dist. Summit No. 23786, 2008-Ohio-781, ¶ 22, quoting State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146. The record refl ects that, on cross-examination, counsel questioned Deputy Clinage regarding his interactions with Mr. George during the traffic stop. In response to counsel’s question, Deputy Clinage agr eed that Mr. George was cooperative with all requests during the stop and that “[h]e was a gen tleman.” Trial counsel also cross-examined Deputy Clinage regarding his administration of the field sobriety tests, Mr. George’s performance on those tests, and his impression of Mr. George on the “bodycam” video recording of the stop. Counsel further questioned him on Mr. George’s ability to follow instructions during the administration of field sobriety tests, and Deputy Clinage agreed that Mr. George followed all the instructions correctly. {¶12} Mr. George has not established that tria l counsel’s cross-examination of Deputy Clinage was unsound trial strategy, or that counsel ’s performance was deficient for neglecting to focus on any particular line of questioning. We conclude that Mr. George has not demonstrated deficient performance in counsel’s cross-examina tion, and we cannot concl ude that trial counsel

was ineffective on this basis.

C. Failure to move for acquittal {¶13} Mr. George contends that tr ial counsel was ineffective wh en he failed to move for acquittal at the close of the State’ s case and again at the close of all the evidence. In support of this argument, Mr. George cla ims trial counsel should have m oved to strike Deputy Clinage’s testimony relating to the field sobriety tests. Had counsel so moved, Mr. George argues, the trial court would have stricken the testimony because Deputy Clinage “never testified as to what6

standardized field sobriety tests he was complying with when he administered the tests to Mr. George.” (Emphasis omitted.) Mr. George cont ends, based on his assumption that a motion to strike would have been granted, “the trial cour t would not have considered [Deputy Clinage]’s testimony regarding the field sobriety tests in determining whether sufficient evidence had been presented by the State to sustain a conviction.” {¶14} Although defense counsel will customaril y move for acquittal “as a matter of course to test the sufficiency of the state’s evidence,” the decision not to move for acquittal does not necessarily render trial couns el’s performance deficient. State v. Fetter , 9th Dist. Wayne No. 03CA0012, 2003-Ohio-5778, ¶ 21, quoting State v. Scott , 6th Dist. Sandusky No. S-02-026, 2003-Ohio-2797, ¶ 21. Initially we note that trial counsel did not simply neglect to move for acquittal pursuant to Crim.R. 29. The record clearl y reflects that trial counsel deliberately chose not to move for acquittal. At the close of ev idence, trial counsel stated: “No Rule 29, your Honor.” He then stated, “I’m not going to fight[...] I’m not going to[...] move for a Rule 29.” Mr. George has not developed an argument to overcome the presumption that the decision to forego the motion was part of counsel’s trial strategy. {¶15} Furthermore, where there exists suffici ent evidence to support a conviction, “a criminal defendant is not prejudiced by his trial counsel’s failure to move for [acquittal]; thus, failure to move for [acquittal] when there is sufficient evidence to convict is not ineffective

assistance of counsel.” State v. Jones , 9th Dist. Summit No. 21789, 2004-Ohio-4326, ¶ 16. Mr. George does not directly challenge that a motion was warranted because the evidence was insufficient to sustain a conviction. Instead, he makes the speculative assumption that a motion for acquittal would have been granted in the event that trial counsel had also successfully moved to exclude portions of Deputy Clinage’s testimony. Mr. George has not shown that Deputy7

Clinage’s testimony should have been stricken, nor has he demonstrated that a motion for acquittal could have been successful. Accordingly, we concluded that Mr. George has not established that he was prejudiced by trial counsel’s decision not to move for acquittal, we

cannot conclude that trial counsel was ineffective on this basis.

D. Motion to suppress {¶16} Mr. George argues that trial counsel wa s ineffective for failing to timely file a motion to suppress evidence of the standardized field sobriety tests. He as serts that trial counsel did file an untimely motion to suppress, lacking a certificate of service, and that the trial court denied the motion on that basis. Mr. George argues that evidence of the standardized field sobriety tests would have been suppressed if the motion had been properly filed. This argument disregards the fact that the untimely motion tr ial counsel filed was ba sed on grounds distinct from those argued in this appeal and, therefore, it is not relevant to our review. Nevertheless, this Court must still determine whether trial counsel was ineffective for not moving to suppress evidence of the standardized field sobriety tests. {¶17} The “[f]ailure to file a suppression moti on does not constitute per se ineffective

assistance of counsel.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), quoting Kimmelman v.

Morrison , 477 U.S. 365, 384 (1986). “To establish ineffec tive assistance of counsel for failure to file a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question.” State v. Brown , 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65. “Counsel’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.” State v. Kendall, 9th Dist. Summit No. 25721, 2012-Ohio-1172, ¶ 7.8

“Furthermore, * * * a defendant must demonstrate that there was a reasonable probability that the motion to suppress would have been gran ted” in order to establish prejudice. Id. {¶18} In his brief, Mr. George contends that at trial “the State failed to show by clear and convincing evidence that the three [field s obriety] tests were done in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests

that were in effect at the time the tests were administered[.]” Based upon his claim that at trial “the prosecution did not introduce any evidence of standardized field sobriety tests then in effect * * *”, Mr. George speculates, “it is also likely th at such tests would not have been introduced at a suppression hearing” and, therefore, the field so briety tests would have been excluded based on this lack of evidence. Presuming that the te sts would have been excluded, Mr. George then asserts that there would have been a lack of pr obable cause for his arrest, and “this case would

not have made it to trial because the State would not have been able to proceed[.]” This tenuous argument relies upon unsubstantiated theories ab out what might have occurred at a suppression hearing, and there is simply no basis in the record to support such claims. {¶19} Alternatively, Mr. George argues that, even if the State had established that the field sobriety tests were reliable, credible, a nd generally accepted, the trial court would have excluded two of the tests because Deputy Clinage “did not administer those tests in substantial compliance with his training.” To support this ar gument, Mr. George references the copy of the National Highway Safety Administration Participant’s Manual for DWI Detection and Standardized Field Sobriety Testing attached to his brief. This manual, which is essential to Mr. George’s argument, was not made part of the reco rd below. Because this Court cannot consider evidence outside of the record in this appeal , we cannot conclude th at trial counsel was

ineffective on this basis. See State v. Anderson , 9th Dist. Summit No. 26600, 2013-Ohio-2786, ¶9

12, see also State v. Mencini , 9th Dist. Summit No. 27322, 2015-Ohio-89, ¶ 21 (“Without any standards in the record * * *, it is impossible for this Court to determine whether the test was given in substantial compliance.”). {¶20} We conclude that Mr. George has not es tablished that such a motion would have been successful and, therefore, we cannot say th at Mr. George’s defense was prejudiced by trial counsel’s performance. Accordingly, we overrule his assignment of error.

III. {¶21} Although a review of the body-cam video causes this Court grave concern about the weight of the evidence in this case, unfortunately we are constrained to limit our review to the four issues raised in the sole assignment of error. See State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 30 (“App.R. 12(A)(1 )(b) mandates that an appe llate court ‘[d]etermine the appeal on its merits on the assignments of error[.]’”). We also note that the dissent identifies trial counsel’s failure to present an expert to intr oduce the breathalyzer results in this case as an

indication of ineffective assistance of counsel. While we recognize that trial counsel chose not to obtain an expert witness to introduce the results of the breathalyzer, Mr. George did not raise this as an issue on appeal and we must again point out that we are constrained by the assignments of error before us. Having concluded that Mr. Ge orge did not establish ineffective assistance of counsel by the issues raised in his appellate br ief, his sole assignment of error is hereby overruled. The judgment of the Medi na Municipal Court is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal.10

We order that a special mandate issue out of this Court, directing the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CALLAHAN, J. CONCURS. CARR, J. DISSENTING. {¶22} I respectfully dissent. {¶23} Upon reviewing the record in this matter, a compelling case can be made that the weight of the evidence weighs against George ’s conviction for operating a vehicle while under the influence of alcohol. Notably, however, this C ourt’s analysis is somewhat constrained by the fact that George has not challenged either the sufficiency or weight of the evidence on appeal.

See App.R. 12(A)(1)(b).11

{¶24} With respect to the majority’s resolution of George’s ineffective assistance claim, I respectfully dissent. At trial, George admitted that the traffic violations that he committed were a result of texting while drivin g. While George acknowledged that texting while driving was inexcusable, he maintained that his erratic driving was not conn ected to alcohol consumption. His position is supported by the video. George was composed and articulate throughout the course of the ensuing stop. The video demonstr ated that George exited his car and walked normally. He asked and answered questions appr opriately without any slurred speech. His eyes did not appear to be bloodshot. As noted by the majority, the arresting officer testified that he was “a gentleman.” Yet, despite the fact that there were questions regarding whether the field sobriety tests were performed in substantial compliance with the NHTSA manual standards and, further, whether the results of the tests actuall y supported the arresting officer’s conclusion that George was impaired, defense counsel failed to fi le a timely a motion to suppress challenging the field sobriety tests. The failure to challenge the field sobriety tests is particularly significant given that George submitted to the breathalyzer test and the results were below the legal limit. Moreover, with respect to the trial, perhaps one of the more compelling pieces of evidence in George’s favor was that the breathalyzer test results were, in fact, below the legal limit. The trial judge informed defense counsel th at he could admit the breathalyzer results on the condition that the result was accompanied by expert testimony. Defense counsel declined to call an expert and the breathalyzer results were not admitted. {¶25} I believe this case presents the rare s cenario where trial counsel’s performance

was deficient and the result below would have been different but for trial counsel’s ineffective

assistance. See Strickland v. Washington , 466 U.S. 668, 687 (1984). In light of the foregoing, I respectfully dissent.12

APPEARANCES: DAVID C. SHELDON, Attonrey at Law, for Appellant. J. MATTHEW LANIER, Prosecuting Attorney, for Appellee.