[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. Earle E. Wise, Jr., P.J.

Plaintiff

- Appellee : Hon. John W. Wise, J.

: Hon. Patricia A. Delaney, J.

- vs

- :

: Case No. 2021 AP 08 0019

:

DAVID W. PALMER :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County

Court of Common Pleas, Case No. 2020

CR 12 0447

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: June 10, 2022

For Plaintiff

- Appellee: For Defendant

- Appellant:

RYAN STYER DONOVAN R. HILL

TUSCARAWAS COUNTY PROSECUTOR 122 Market Ave. N.

Suite 101

KRISTINE W. BEARD Canton, OH 44702

125 E. High Ave.

New Philadelphia, OH 44663[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

Delaney, J.

{¶1} Defendant

- Appellant David W. Palmer appeals his conviction and sentence

by the Tuscarawas County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

Indictment

{¶2} On December 7, 2020, the Tuscarawas County Grand Jury indicted

Defendant

- Appellant David W. Palmer on two counts: (1) operating a vehicle under the

influence of alcohol, a drug of abuse, or a combination of them

– OVI, a third

- degree

felony in violation of R.C. 4511.19(A)(1)(a)(G)(1)(e), and (2) operating a vehicle under the

influence of alcohol, a drug of abuse, or a combination of them

– OVI, a fourth

- degree

felony in violation of R.C. 4511.19(A)(1)(a)(G)(1)(d). Palmer was arraigned and entered

a not guilty plea to the charges. The matter went forward for jury trial on May 19, 2021.

The following facts were adduced at trial.

Speedway Gas Station

{¶3} Deborah Sieg is employed as a cashier by Speedway Gas Station, located at

264 West High Street, New Philadelphia, Ohio. From her location as a cashier at the gas

station, she can see the interior of the store and all eight gas pumps outside. While the

Speedway Gas Station sells alcoholic beverages in the store, it prohibits her from

selling alcohol to a visibly inebriated person. In her experience as a cashier at Speedway,

she has occasionally encountered customers under the influence of alcohol. She does

not have any specialized training to recognize someone under the influence of alcohol.

Sieg described an inebriated person as someone who could not stand still or straight,

slurred their words, smelled of alcohol, or could not function at the cash register.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶4} On September 20, 2020, Deborah Sieg was working her 2:00 p.m. to 10:00

p.m. shift at the Speedway Gas Station. At approximately 8:50 p.m., while she was

working on the store floor, she saw a man in the store’s “beer cave.” The man was

standing there with the zipper to his pants down. He was stumbling and swaying, while

fumbling with change. When she saw the man leave the store with an alcoholic beverage

in his back pocket, Sieg chased after him because he had not paid for the beverage. She

told him to give it back to her, which he did. From what she observed of the man and his

actions, she felt the man was under the influence of alcohol.

{¶5} Twenty to thirty minutes later, Sieg was working at the cash register when

the same man came to the counter to purchase an alcoholic beverage. Sieg refused the

sale because she observed that the man continued to show signs of inebriation. She

smelled alcohol on his breath, he was swaying, his speech was slurred, and his fly was

down. The man then asked her if she would sell him three dollars of gas, which she sold

to him. The man left the store and Sieg watched him go to a vehicle parked at pump eight,

the farthest gas pump from the store.

{¶6} Sieg watched the man at the gas pump because she wanted to see if he

was going to get in the passenger or driver’s seat of the car. She also wanted to make

sure he did not fall while he was pumping gas. She observed him pump the gas and then

she saw the man get into the driver’s seat of the car. When the man got into the car, at

9:20 p.m., she called the New Philadelphia Police Department because she was

concerned that the man was driving while impaired. She gave the police a description of

the car and the driver, and the license plate number. While she was on the phone with[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

the police, a customer came into the store and stated that a male customer at pump eight

had urinated at the pump.

The Stop

{¶7} Patrolman Wayne Clark, with the New Philadelphia Police Department, was

on duty when he received the call from dispatch regarding an alleged intoxicated male

driver leaving the Speedway Gas Station. Dispatch gave Officer Clark a description of the

vehicle and the license plate number as reported by Sieg. When Officer Clark received

the call from dispatch, he was driving past the Speedway Gas Station, and he immediately

encountered the described vehicle in front of him. The vehicle matched Sieg’s description

and the license plate number given by Sieg was off by one letter.

{¶8} Officer Clark followed behind the vehicle until it turned into the parking lot

of a closed business. Officer Clark did not observe any traffic or equipment violations

while he was driving behind the vehicle. When the vehicle turned into the parking lot,

Officer Clark activated a traffic stop based on the information he had received from Sieg’s

call to dispatch.

{¶9} Patrolman Kurt Olson of the New Philadelphia Police Department received

the same call from dispatch regarding the alleged intoxicated driver reported by Sieg.

Officer Olson was familiar with Sieg and had dealt with her many times. He pulled behind

Officer Clark as he made the traffic stop. He got out of his cruiser and approached the

vehicle with Officer Clark. There was no dash cam video of the traffic stop presented at

trial because the video from that stop, and other dash cam videos, were accidentally

deleted by another New Philadelphia police officer.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶10} Officer Clark approached the driver’s side of the vehicle and asked the

driver for his license. Officer Clark did not recognize the driver of the vehicle. Officer Olson

recognized the driver from interacting with him on previous occasions and knew the driver

was David W. Palmer. Officer Olson, however, was not the investigating officer. The driver

of the vehicle said he did not have a license on him. Officer Clark asked the driver for his

Social Security number to verify his identity, and the driver quickly rambled off a number.

Officer Clark asked him to slow down and repeat the number, at which time the driver

became agitated.

{¶11} As he was speaking with the driver, Officer Clark observed the driver had

slurred speech, bloodshot eyes, and an odor of alcohol coming from him. When asked,

the driver admitted to drinking alcohol. He did not specify how much he drank or what he

had drank. Officer Clark asked the driver to exit the vehicle so he could conduct field

sobriety tests. Officer Olson noticed the driver was slow getting out of the vehicle and

appeared to be off

- balance.

{¶12} Officer Olson described the driver as confrontational when he was asked

to exit the vehicle. Officer Clark asked the driver for his Social Security number again,

and the driver quickly rambled a number off. The driver became more agitated and made

a threat towards Officer Olson, saying “he would end him.” Based on the threat, Officer

Clark handcuffed the driver for the police officer’s safety. Officer Clark and Officer Olson

determined they could not safely conduct field sobriety tests on the driver due to his

confrontational behavior and threat towards Officer Olson. Officer Clark arrested the

driver for OVI based on his observations of the driver.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶13} Officer Clark took the driver to the New Philadelphia Police Department,

where the jail was located. The driver was agitated and swearing in the cruiser as he was

transported during the short drive to the jail.

{¶14} At the police station, the driver of the vehicle continued to act agitated.

Sergeant Morris, Clark’s direct supervisor with the New Philadelphia Police Department,

was at the jail when Officer Clark arrived with the driver. Sgt. Morris recognized the driver

as David W. Palmer and identified him to Officer Clark. After doing a search post

- arrest

in the jail cell area, the officers asked Palmer to remove his piercing. Palmer was

uncooperative and made an aggressive move towards Sgt. Morris. Officer Olson, who

had stayed at the scene with Palmer’s vehicle, received a call from dispatch that there

was a fight at the jail. He left the scene and arrived at the jail where he saw Officer Clark

and Sgt. Morris struggling to detain Palmer in an “intox cell.” Officer Olson went into the

intox cell to assist, and the three officers were able to detain Palmer. A video of the

incident was shown to the jury. Officer Olson could smell the odor of alcohol coming from

Palmer as they struggled to detain him in the cell.

{¶15} Because of Palmer’s physical aggression, Sgt. Morris determined they

could not safely conduct field sobriety tests on Palmer. There was a mandate prohibiting

the use of breath tests to determine intoxication levels because of the COVID pandemic.

The New Philadelphia Police Department did not do blood draws to determine blood

alcohol levels due to the requirement of a search warrant and only conducted urine tests

for suspected drug usage.

{¶16} Based on Sgt. Morris’s identification of Palmer, Officer Clark checked the

Bureau of Motor Vehicles database and LEADS to review Palmer’s driving records. The[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

LEADS records contained Palmer’s date of birth, Social Security number, and physical

description. From the records, Officer Clark determined Sgt. Morris had correctly

identified Palmer as the driver of the vehicle. The records showed that Palmer’s driver’s

license had been suspended and he had prior OVI convictions from 2009 in the Carroll

County Municipal Court, 2013 in the Alliance Municipal Court, 2013 in the Carroll County

Municipal Court, 2014 in the Stark County Court of Common Pleas, and 2014 in the

Carroll County Court of Common Pleas. Based on the records and investigation by Officer

Clark, he sent a report to the prosecutor’s office for its review.

Verdict

{¶17} At the close of the State’s case, Palmer moved for a dismissal of the

charges pursuant to Crim.R. 29. The trial court denied the motion.

{¶18} The jury returned a verdict of guilty on the charges of (1) operating a vehicle

under the influence of alcohol, a drug of abuse, or a combination of them

– OVI, a third

degree felony in violation of R.C. 4511.19(A)(1)(a)(G)(1)(e), and (2) operating a vehicle

under the influence of alcohol, a drug of abuse, or a combination of them

– OVI, a fourth

degree felony in violation of R.C. 4511.19(A)(1)(a)(G)(1)(d). Sentencing was scheduled

for July 16, 2021.

Sentencing

{¶19} The parties appeared for the sentencing hearing on July 16, 2021. The

State argued the charges were allied offenses and the State elected Count One, a felony

of the third degree, for purposes of sentencing.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶20} The trial court sentenced Palmer to serve 30 months in prison on Count

One and receive a 10

- year license suspension. He was assessed six points on his driving

record and assessed a $1,500 fine.

{¶21} It is from this conviction and sentence that Palmer now appeals.

ASSIGNMENTS OF ERROR

{¶22} Palmer raises four Assignments of Error:

{¶23} “I. THE APPELLEE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST APPELLANT, AND THE CONVICTION MUST BE

REVERSED.

{¶24} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.

{¶25} “III. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO

PROSECUTORIAL MISCONDUCT.

{¶26} “IV. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6TH AND 14TH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION

10 OF THE OHIO CONSTITUTION.”

ANALYSIS

I. and II.

{¶27} In his first and second Assignments of Error, Palmer contends his

convictions for violations of R.C. 4511.19(A)(1)(a) were against the sufficiency and

manifest weight of the evidence. We consider the two Assignments of Error together

because they are interrelated.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶28} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins

, 78 Ohio St.3d 380,

1997

- Ohio

- 52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks

, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “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.”

{¶29} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra

, 78 Ohio St.3d at 387,

678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id

.

{¶30} In his appeal, Palmer raises two arguments that his convictions were

against the sufficiency and manifest weight of the evidence. He first contends there was

insufficient evidence to prove beyond a reasonable doubt that he was under the influence[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

of alcohol. Second, he argues the State failed to provide any reliable evidence at trial to

identify Palmer as the man who was arrested on September 20, 2020 for OVI.

{¶31} Palmer was charged and convicted of (1) operating a vehicle under the

influence of alcohol, a drug of abuse, or a combination of them

– OVI, a third

- degree

felony in violation of R.C. 4511.19(A)(1)(a)(G)(1)(e), and (2) operating a vehicle under the

influence of alcohol, a drug of abuse, or a combination of them

– OVI, a fourth

- degree

felony in violation of R.C. 4511.19(A)(1)(a)(G)(1)(d). Pursuant to R.C. 4511.19(A)(1)(a),

“[n]o person shall operate any vehicle, * * * within this state, if, at the time of the operation,

* * * [t]he person is under the influence of alcohol, a drug of abuse, or a combination of

them.”

Violation of R.C. 4511.19(A)(1)(a)

{¶32} Palmer first argues there was no evidence that he was under the influence

of alcohol beyond the witnesses’ observations. The officers did not conduct field sobriety

tests or chemical tests to determine if he was under the influence of alcohol. When Officer

Clark initiated the traffic stop, he admittedly did not observe Palmer commit any traffic

violations and did not observe any equipment violations on Palmer’s motor vehicle. We

note that Palmer did not file a motion to suppress the traffic stop.

{¶33} Officer Clark initiated the traffic stop based on Sieg’s call to dispatch that

she observed Palmer’s behavior at the Speedway Gas Station, and he appeared to be

under the influence of alcohol. “It is generally accepted that virtually any lay witness,

including a police officer, may testify as to whether an individual appears intoxicated.”

State v. Scott

, 5th Dist. Fairfield No. 2020 CA 00015, 2021

- Ohio

- 156, 2021 WL 223811,

¶ 30 quoting Columbus v. Mullins

, 162 St 419, 123 N.E.2d 422 (1954); State v. Schmidt

,[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

101 Ohio St.3d 79, 2004

- Ohio

- 37, 801 N.E.2d 446 (even when the final results of a field

sobriety test are excluded because they were not administered in substantial compliance,

an officer may testify as a lay witness about the officer's observation of the defendant's

performance); State v. Ricer

, 5th Dist. Ashland No. 17

- COA

- 023, 2018

- Ohio

- 426.

{¶34} Sieg had two separate interactions with Palmer. In the first instance, she

observed him walking out of the store with an alcoholic beverage in his back pocket for

which he had not paid. She saw that his zipper to his pants was down. He was stumbling

and swaying. In the second instance, Palmer came to the store counter and attempted to

purchase another alcoholic beverage. Sieg refused the sale because she observed that

Palmer showed signs of inebriation. She smelled alcohol on his breath, he was swaying,

his speech was slurred, and his zipper was still down. As she called the police to report

that she believed that Palmer was driving under the influence of alcohol, a customer

reported to her that Palmer had urinated on a gas station pump.

{¶35} Officer Clark did not observe Palmer commit a traffic violation, but traffic

stops may be permissible when another person supplies information to an officer who has

not personally observed a violation. State v. Myers

, 5th Dist. No. 21CA060027, 2021

-

Ohio

- 4087, 180 N.E.3d 98, 2021 WL 5368016, ¶ 25. The United States Supreme Court

has “firmly rejected the argument ‘that reasonable cause for a[n investigative stop] can

only be based on the officer's personal observation, rather than on information supplied

by another person.’ ” (Brackets sic.) State v. Tidwell

, 165 Ohio St.3d 57, 2021

- Ohio

- 2072,

175 N.E.3d 527, citing Navarette v. California

, 572 U.S. 393, 397, 134 S.Ct. 1683, 188

L.Ed.2d 680 (2014), internal citation omitted.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶36} The courts have recognized three categories of informants: (1) citizen

informants; (2) known informants, i.e., those from the criminal world who have previously

provided reliable tips; and (3) anonymous informants, who are comparatively unreliable.

State v. Myers

, 5th Dist. No. 21CA060027, 2021

- Ohio

- 4087, 180 N.E.3d 98, 2021 WL

5368016, ¶ 27 citing Maumee v. Weisner

, 87 Ohio St.3d 295, 300, 720 N.E.2d 507 (1999).

In Weisner

, the Ohio Supreme Court discussed the credibility to be given to an identified

citizen tipster:

The [United States Supreme Court] has further suggested that an identified

citizen informant may be highly reliable and, therefore, a strong showing as

to the other indicia of reliability may be unnecessary: ‘[l]f an unquestionably

honest citizen comes forward with a report of criminal activity

- which if

fabricated would subject him to criminal liability

- we have found rigorous

scrutiny of the basis of his knowledge unnecessary.’ Illinois v. Gates

, 462

U.S. at 233

– 234, 103 S.Ct. at 2329

– 2330, 76 L.Ed.2d at 545.

Maumee v. Weisner

, 87 Ohio St.3d 295, 300, 720 N.E.2d 507.

{¶37} Officer Olson testified he had previous interactions with Sieg and was

familiar with her. Her call to the police “was not about a past crime but rather was about

alleged criminal activity that was then afoot.” Tidwell

, supra at ¶ 44. Finally, a very brief

time period elapsed between Sieg’s call to dispatch and Officer Clark’s traffic stop of

Palmer. When Officer Clark received the call from dispatch, Palmer’s car was directly in

front of his police cruiser. Again, as the Ohio Supreme Court discussed in Tidwell :

It is undisputed that [the officer] stopped the vehicle because he believed

there was a public

- safety concern. Given the information then available to[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

[the officer], it was reasonable under the totality of the circumstances for

him to approach the vehicle in this public area and briefly detain its driver in

order to make a most basic inquiry as to whether an immediate danger to

public safety existed.

State v. Tidwell

, 165 Ohio St.3d 57, 2021

- Ohio

- 2072, 175 N.E.3d 527.

{¶38} When Officer Clark and Officer Olson made contact with Palmer, it

confirmed to the officers that Palmer was impaired “based on what he personally smelled,

saw, and heard.” Id

., at ¶ 50. Palmer admitted to Officer Clark that he had been drinking

alcohol that evening. The officers testified that Palmer had bloodshot eyes, slurred

speech, and the odor of alcohol on his breath. He was slow to exit the vehicle and

appeared to be off

- balance.

{¶39} Officer Clark, Officer Olson, and Sgt. Morris testified they could not safely

conduct field sobriety tests on Palmer due to Palmer’s behavior. At the traffic stop, he

was agitated and made a threat towards Officer Olson. At the jail, when asked to remove

a piercing, Palmer became aggressive and threatened Sgt. Morris, requiring three officers

to detain Palmer in the intox cell. A video was shown to the jury of the incident in the jail.

{¶40} While no field sobriety tests were conducted on Palmer, four witnesses

testified as to their observations of Palmer’s demeanor and behavior on September 20,

2020 that led them to conclude that Palmer was under the influence of alcohol. Palmer

was not charged with violating R.C. 4511.19(A)(1)(b), the “per se” section, which would

have required the State to prove that he drove with a prohibited blood or breath alcohol

content.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶41} The phrase “under the influence of intoxicating liquor” has been defined as

“[t]he condition in which a person finds himself after having consumed some intoxicating

beverage in such quantity that its effect on him adversely affects his actions, reactions,

conduct, movement or mental processes or impairs his reactions to an appreciable

degree, thereby lessening his ability to operate a motor vehicle.” State v. Wise

, 5th Dist.

Guernsey No. 2008

- CA

- 9, 2008

- Ohio

- 7003, 2008 WL 5427978, ¶ 77 quoting Toledo v.

Starks

, 25 Ohio App.2d 162, 166, 267 N.E.2d 824 (6th Dist.1971). See, also, State v.

Steele

, 95 Ohio App. 107, 111, 117 N.E.2d 617 (3rd Dist.1952) (“[B]eing ‘under the

influence of alcohol or intoxicating liquor’ means that the accused must have consumed

some intoxicating beverage, whether mild or potent, and in such quantity, whether small

or great, that the effect thereof on him was to adversely affect his actions, reactions,

conduct, movements or mental processes, or to impair his reactions, under the

circumstances then existing so as to deprive him of that clearness of the intellect and

control of himself which he would otherwise possess”). See, State v. Henderson

, 5th Dist.

Stark No. 2004

- CA

- 00215, 2005

- Ohio

- 1644 at ¶ 32. [Citing State v. Barrett (Feb. 26,

2001), Licking App. No. 00CA 47].

{¶42} Circumstantial evidence will sustain a conviction for driving under the

influence. State v. Neff

, 104 Ohio App. 289, 148 N.E.2d 236 (1957); State v. Starks

, 25

Ohio App.2d at 163, 267 N.E.2d at 827. “Proof of factual circumstance concerning the

defendant's conduct and activities preceding and following the driving of the vehicle [one]

is charged to have driven while under the influence of intoxicating liquor is relevant to the

ultimate issue of whether [a] defendant was driving a vehicle while under the influence of

intoxicating liquor.” Starks

, 25 Ohio App.2d at 163, 267 N.E.2d at 827.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶43} Upon this record, there was sufficient evidence to demonstrate that Palmer

had operated his vehicle while under the influence of alcohol. The jury considered the

credibility of the witnesses and weighed the evidence to determine that Palmer was under

the influence of alcohol when he operated his vehicle on September 20, 2020.

Identification

{¶44} Palmer next contends that the in

- court identification of Palmer was

inherently suggestive and unreliable and therefore insufficient to identify Palmer as the

offender. Palmer argues the State used leading questions to elicit the witnesses’

identification of Palmer, rendering their identification as unreliable.

{¶45} The State has the burden to prove every element of the crime charged

beyond a reasonable doubt, including the identity of the person who committed the crime.

State v. Smith

, 4th Dist. Pickaway No. 19CA33, 2021

- Ohio

- 2866, 2021 WL 3708056, ¶

90 citing State v. Bailey

, 2nd Dist. Montgomery No. 27177, 2017

- Ohio

- 2679, at ¶ 18; State

v. Tate

, 140 Ohio St.3d 442, 2014

- Ohio

- 3667, 19 N.E.3d 888, ¶ 15 (Internal citations

omitted). However, there is no general requirement that the defendant must be visually

identified in court by a witness. State v. Smith

, 5th Dist. Stark No. 2019CA00156, 2020

-

Ohio

- 3618, ¶ 13; State v. Lawwill

, 12th Dist. Butler No. CA2007

- 01

- 014, 2008

- Ohio

- 3592,

2008 WL 2789278, ¶ 11, appeal not allowed, 120 Ohio St.3d 1456, 2008

- Ohio

- 6813, 898

N.E.2d 969; State v. Collins

, 8th Dist. Cuyahoga No. 98350, 2013

- Ohio

- 488, ¶ 19;

Cleveland v. Williams

, 8th Dist. Cuyahoga No. 101588, 2015

- Ohio

- 1739, ¶ 25. Direct or

circumstantial evidence is sufficient to establish the identity of the accused as the person

who committed the crime. State v. Smith, 2020

- Ohio

- 3618, ¶ 13; State v. Irby

, Mahoning

App. No. 03 MA 54, 2004

– Ohio

– 5929, ¶ 16

– 21.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶46} Sieg was asked if she recognized Palmer as the customer in question. She

stated, “yes, I do.” (T. 190

- 191). The State asked Sieg again if she ultimately recognized

the driver in the courtroom, to which she responded in the affirmative. (T. 219). The State

followed up with asking if “he was to my far right seated at the table next to counsel,” and

Sieg responded, “he is.” (T. 219).

{¶47} Officer Clark initiated the traffic stop of Palmer’s vehicle based on Sieg’s

description of the vehicle and the license plate number, which was one letter off. She had

also given dispatch a description of the driver. The State asked Officer Olson about

Palmer’s identity:

A. I know when he asked him for his driver’s license, he said that he didn’t

have one. Asked him for his social security number. Initially said he didn’t

know it and then he just rattled off real fast several times making it difficult

to get. I had already told, I believe Officer Clark also recognized him, but I

had dealt with him on previous occasions, also had dealt with him from a

dispatch standpoint, you know, having to help book him in, book him out,

so I knew who he was.

Q. Okay. So you heard, you recognize the Defendant in here as David W.

Palmer?

A. Yes.

Q. Okay. And you had known him from previous interactions?

A. Correct.

Q. Okay. And he is the person that you and Patrolman Clark are dealing

with that, at that location, who’s ultimately arrested and taken to the jail?[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

A. Correct.

* * * Okay. Your honor, I’d like the record to reflect that the witness has

identified the Defendant.

(T. 282

- 283).

{¶48} Sgt. Morris testified he recognized Palmer when Officer Clark brought him

to the jail. (T. 321

- 322). Sgt. Morris identified Palmer to Officer Clark. (T. 226). Based on

Sgt. Morris’ identification of Palmer, Officer Clark reviewed the BMV and LEADS records,

which included a birth date and physical description of the person named David W.

Palmer. (T. 231).

{¶49} In this case, there was ample circumstantial evidence to allow the jury to

conclude that Palmer was the individual who was operating a motor vehicle while under

the influence of alcohol on September 20, 2020. Further, Sieg and Officer Olson provided

in

- court identification of Palmer.

{¶50} Based on the foregoing and the entire record in this matter, we find Palmer’s

conviction is not against the sufficiency or the manifest weight of the evidence. The jury

heard the witnesses, evaluated the evidence, and was convinced of Palmer’s

identification and guilt of driving under the influence.

{¶51} Palmer’s first and second Assignments of Error are overruled.

III.

{¶52} In his third Assignment of Error, Palmer contends he was denied a fair trial

due to prosecutorial misconduct. He argues three instances of prosecutorial misconduct

by (1) asking leading questions when witnesses were asked to identify Palmer; (2)[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

improperly eliciting opinion testimony from Officer Clark as to Palmer’s alleged guilt; and

(3) expressing his personal opinion as to Palmer’s guilt during closing argument.

{¶53} We note that Palmer’s trial counsel failed to object and bring the alleged

errors to the attention of the trial court, therefore Palmer has waived all but plain error

review. Under the plain error rule, “[p]lain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the court.” Crim.R. 52(B).

The rule places the following limitations on a reviewing court's determination to correct an

error despite the absence of timely objections at trial: (1) “there must be an error, i.e. a

deviation from a legal rule,” (2) “the error must be plain,” that is an error that constitutes

“an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected

“substantial rights” such that “the trial court's error must have affected the outcome of the

trial.” State v. Wood

, 5th Dist. Knox No. 20CA000010, 2020

- Ohio

- 4251, 2020 WL

5092841, ¶ 18 citing State v. Dunn

, 5th Dist. Stark No. 2008

- CA

- 00137, 2009

- Ohio

- 1688,

2009 WL 943968, ¶ 89, citing State v. Morales

, 10th Dist. Franklin Nos. 03

- AP

- 318, 2004

-

Ohio

- 3391, 2004 WL 1446117, ¶ 19.

{¶54} The test for prosecutorial misconduct is whether the prosecutor's comments

and remarks were improper and if so, whether those comments and remarks prejudicially

affected the substantial rights of the accused. Sunbury v. Sullivan

, 5th Dist. Delaware No.

11CAC030025, 2012

- Ohio

- 3699, 2012 WL 3525617, ¶ 30 citing State v. Lott

, 51 Ohio

St.3d 160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct,

it is our duty to consider the complained of conduct in the context of the entire trial. Darden

v. Wainwright

, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). A trial is not unfair,

if, in the context of the entire trial, it appears clear beyond a reasonable doubt the jury[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

would have found the defendant guilty even without the improper comments. State v.

Treesh

, 90 Ohio St.3d 460, 464, 2001

– Ohio

– 4, 739 N.E.2d 749. Furthermore, both the

prosecution and the defense have wide latitude during opening and closing arguments.

{¶55} However, a prosecutor may not express his personal belief or opinion as to

the credibility of a witness, the guilt of an accused or allude to matters that are not

supported by admissible evidence. State v. Smith

, 14 Ohio St.3d 13, 14, 470 N.E.2d 883

(1984). The wide latitude given the prosecution during closing arguments “does not

‘encompass inviting the jury to reach its decision on matters outside the evidence

adduced at trial.’ “ State v. Hart

, 8th Dist. No. 79564, 2002

– Ohio

– 1084, at 3, citing State

v. Freeman

, 138 Ohio App.3d 408, 419, 741 N.E.2d 566 (1st Dist. 2000).

{¶56} Palmer first contends State improperly asked leading questions of the

witnesses to elicit identification of Palmer as the perpetrator. Based on our determination

of Palmer’s first and second Assignments of Error as they relate to Palmer’s identification,

we find no plain error.

{¶57} Palmer next contends the prosecutor engaged in prosecutorial misconduct

when it solicitated the opinion of Officer Clark as to Palmer’s guilt of the crime. The State

asked Officer Clark, “were you of the belief that the Defendant was guilty of felony OVI?”

(T. 232). Palmer’s counsel did not object to the inquiry. Opinion testimony by police as to

the guilt or innocence of a criminal defendant has been held inadmissible as a violation

of due process. State v. Vance

, 5th Dist. Ashland No. 2007

- COA

- 035, 2008

- Ohio

- 4763,

2008 WL 4286633, ¶ 32. As the State notes in its appellate brief, the statement by Officer

Clark must be considered in context. The State’s question was not about Palmer’s guilt[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

or innocence, rather it was about determining whether Palmer could be charged with

felony OVI and submitting a report to the prosecutor’s office for its review.

{¶58} Prior to the question regarding Palmer’s alleged guilt, the State asked if

after Sgt. Morris identified Palmer, were the officers able to get any more information

regarding Palmer. (T. 226). Officer Clark responded that he was able to review Palmer’s

driving record, which was standard practice and procedure after an arrest, and

determined he had prior OVI convictions and his license was suspended. (T. 226). The

State then asked, “And specifically with OVI’s, I’m assuming for this very reason that’s

one of the reasons that you are checking.” Officer Clark answered, “Correct. Because

OVI’s can escalate to felonies, so we do a check on that.” (T. 227). The State reviewed

with Officer Clark the collected certified judgment entries of Palmer’s prior OVI

convictions. (T. 229

- 232). The line of questioning then goes on:

Q. So those correlate with the information that you had at the time

concerning Mr. Palmer’s convictions?

A. Yes.

Q. All right. So based on that, were you of the belief that the Defendant was

guilty of felony OVI?

A. That’s correct.

Q. And would have submitted your report to our office?

A. That is correct.

(T. 232). We find no prosecutorial misconduct when the State’s question to Officer Clark,

while inartful, is considered in context.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

{¶59} Palmer finally argues the prosecutor improperly interjected his opinion

during his closing arguments. He made the following statements:

I don’t think that there can be any reasonable doubt, of any kind, really any

doubt in your mind that this Defendant, David Palmer, on that date operated

a motor vehicle and that it was in the venue, jurisdiction of this Court. I don’t

think that there can be any dispute about that. * * * I don’t think there can

be any doubt in your mind that David W. Palmer consumed alcohol. * * * So

I don’t think that there can be any reasonable doubt that David W. Palmer

consumed alcohol and operated the vehicle.

(T. 357

- 358).

{¶60} In reviewing the prosecutor’s four “I” statements in the context of his closing

statement within the entire trial, we find only harmless error. It appears clear beyond a

reasonable doubt the jury would have found the Palmer guilty even without the comments.

{¶61} Palmer’s third Assignment of Error is overruled.

IV.

{¶62} In Palmer’s fourth Assignment of Error, he contends he did not receive the

effective assistance of counsel. Palmer claims his trial counsel was ineffective for his

failure to object to the prosecutor’s leading questions during direct examination, to the

prosecutor’s question to Officer Clark regarding Palmer’s alleged guilt, and to the

prosecutor’s opinion statements during closing argument.

{¶63} A claim for ineffective assistance of counsel requires a two

- prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674(1984); State v. Bradley

, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).

{¶64} To warrant a reversal, the appellant must additionally show he was

prejudiced by counsel's ineffectiveness. “Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel. Lockhart v. Fretwell

, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

{¶65} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “* * * need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.

{¶66} We have thoroughly examined the issues raised by Palmer in his first,

second, and third Assignments of Error that he uses to support his claim that he was

denied effective assistance of counsel. We find Palmer was not prejudiced by defense

counsel's representation of him. The result of the trial was not unreliable nor were the

proceedings fundamentally unfair because of the performance of defense counsel.

{¶67} Palmer’s fourth Assignment of Error is overruled.[Cite as State v. Palmer , 2022

- Ohio

- 1968.]

CONCLUSION

{¶68} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Wise, Earle, P.J. and

Wise, John, J., concur.