[Cite as State v. Harris , 2021-Ohio-4559.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-21-30

v. ANTHONY W. HARRIS, O P I N I O N
DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court

Trial Court No. 20CRB01809-A1 Judgment Affirmed Date of Decision: December 27, 2021

APPEARANCES: 

### Zachary D. Maisch for Appellant 

### Joseph C. Snyder for AppelleeCase No. 1-21-30

-2- MILLER, J. {¶1} Defendant-appellant, Anthony W. Harris, appeals the November 2, 2020 judgment of the Lima Municipal Court. For the reasons tha t follow, we affirm. Background {¶2} Following a traffic stop on September 18, 2020, Harris was char ged with possession of drug paraphernalia in violation of R.C. 2925 .14(C), a fourthdegree misdemeanor. On September 23, 2020, Harris appeared for an arraignment and entered a plea of not guilty. {¶3} Following a bench trial on November 2, 2020, the trial court fo und Harris guilty of possession of drug paraphernalia. The trial c ourt sentenced Harris to 30 days of local incarceration with 10 days suspended on the condition that he commit no like offenses for two years. That same day, the tria l court filed its judgment entry of conviction and sentence. {¶4} On July 15, 2021, Harris filed a motion for delayed appeal whic h this Court granted. He raises one assignment of error for our revie w. Assignment of Error
The defendant did not receive effective assistance of trial cou nsel due to the failure to suppress evidence from the traffic stop w hich resulted in prejudice to the defendant.Case No. 1-21-30

-3- {¶5} In his assignment of error, Harris argues that his trial counse l was ineffective for failing to file a motion to suppress evidence r elating to the traffic stop. Relevant Law {¶6} A defendant asserting a claim of ineffective assistance of coun sel must establish: (1) counsel’s performance was deficient or unreasona ble 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 w ere not trial strategies 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 trial decisions, even if unsucce ssful, 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 subs tantial violation of counsel’s essential duties to his client. See State v. Bradley , 42 Ohio St.3d 136, 141 (1989).Case No. 1-21-30

-4- {¶7} Prejudice results when “‘there is a reasonable probability that , but for counsel’s unprofessional errors, the result of the proceeding w ould have been different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability is a probability sufficient to undermine confidence in the outc ome.’” Id. , quoting
Strickland at 694. {¶8} “The failure to file a motion is not per se ineffective assista nce of counsel.” State v. Costell , 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 161. To sustain a claim of ineffective assistance of counsel based o n counsel’s failure to file a particular motion, the defendant must first specify the basis for the motion that counsel supposedly should have filed. See State v. Phelps , 5th Dist. Delaware Nos. 18 CAA 02 0016 and 18 CAA 02 0017, 2018-Ohio-4738, ¶ 13. Then, the “‘defendant must show that the motion had a reasonable probabil ity of success.’”
State v. Dahms , 3d Dist. Seneca No. 13-16-16, 2017-Ohio-4221, ¶ 101, quoting State v. Ferguson , 10th Dist. Franklin No. 16AP-307, 2016-Ohio-8537, ¶ 11; Phelps at ¶ 13. If the defendant fails to demonstrate a reasonable pr obability that the proposed motion would have been granted, counsel is presumed to have been effective since the filing of the motion would have been a “fut ile act,” which the law does not require counsel to undertake. State v. Leu , 6th Dist. Lucas No. L-17-1265, 2019-Ohio-3404, ¶ 47; State v. Cottrell , 4th Dist. Ross Nos. 11CA3241 and 11CA3242, 2012-Ohio-4583, ¶ 20. Additionally, even if the defe ndant succeeds inCase No. 1-21-30

-5- establishing a reasonable probability of success on the propose d motion, he still “must further show that there is a reasonable probability that the outcome [of the trial] would have been different if the motion had been granted * * *.” State v.
Blanton , 4th Dist. Adams Nos. 19CA1096 and 19CA1097, 2020-Ohio-7018, ¶ 50, appeal allowed, 162 Ohio St.3d 1444, 2021-Ohio-1398; Phelps at ¶ 13. Analysis {¶9} Harris argues his trial counsel was ineffective for failing to file a motion to suppress evidence. Harris contends that the traffic stop wh ich subsequently led to the discovery of the crack pipe forming the basis of his pos session of drug paraphernalia citation was unlawful. {¶10} At the trial, Deputy Alex Gresham, a deputy sheriff with the Al len County Sheriff’s Department, testified that at approximately 3: 00 a.m. on September 18, 2020, he was driving his marked patrol vehicle be hind a white Kia Soul. (Nov. 2, 2020 Tr. at 2-3). Deputy Gresham stated he che cked the vehicle’s registration from the license plate and discovered the license plate was registered to a black Kia. ( Id. at 3). Then, he observed the white Kia fail to make a complet e stop at a red light before making a right hand turn. ( Id. at 3-4). Thereafter, Deputy Gresham initiated a stop of the vehicle. ( Id. at 4). Deputy Gresham stated that he initiated a traffic stop of the vehicle for two reasons: (1) th e driver of the vehicle didCase No. 1-21-30

-6- not make a complete stop at a red light and (2) the color of th e vehicle did not match the color indicated on the vehicle’s registration. ( Id. at 8-11). {¶11} After making contact with Harris, the driver of the vehicle, De puty Gresham instructed his canine partner, who is certified in narc otics detection, to conduct a free-air sniff around the vehicle. ( Id. at 4-5, 12-14). During the free-air sniff, the canine partner sat down, which Deputy Gresham testif ied is how the canine alerts when it detects the odor of narcotics. ( Id. at 13). Then, Deputy Gresham conducted a search of the Kia Soul and located a glass pipe in the driver’s door which Deputy Gresham recognized as a crack pipe. ( Id. at 5-6). Deputy Gresham testified that he showed the glass pipe to Harris who admitted the object was a crack pipe. ( Id. at 6-7). Thereafter, Deputy Gresham wrote Harris a citation f or possession of drug paraphernalia. ( Id. at 7). {¶12} Harris contends his trial counsel was ineffective for failing t o file a motion to suppress evidence. Harris claims the traffic stop wa s unlawful because his vehicle stopped completely at the red light. According to Harris, Deputy Gresham’s dashboard camera footage shows the vehicle making a f ull stop at the red light before turning right. Harris reasons that because he made a full stop at the red light, Deputy Gresham did not have a lawful basis upon whic h to stop his vehicle. Harris argues because Deputy Gresham did not conduct a valid traffic stop, the evidence found in his vehicle, namely, the crack pipe, shou ld be suppressed.Case No. 1-21-30

-7- Accordingly, Harris reasons that his trial counsel was ineffect ive for failing to file a motion to suppress evidence because the stop was not valid. {¶13} Harris’s argument fails for two reasons. First, “‘[a] claim of ineffective assistance of counsel in a direct appeal must be es tablished by the evidence in the record.’” State v. Thompson , 3d Dist. Marion No. 9-20-35, 2021- Ohio-2979, ¶ 12, quoting State v. Carter , 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, ¶ 78. “‘When an allegation of ineffective assi stance of counsel is based upon material that is not part of the record, the merits of the argument cannot be addressed.’” Id. , quoting State v. Barnett , 7th Dist. Jefferson No. 06-JE-23, 2008-Ohio-1546, ¶ 130. Although Harris claims that Deputy Gres ham’s dash camera footage reveals that he made a full stop at the red ligh t before turning right, the dash camera footage was not introduced at Harris’s trial or ever made a part of the record in the trial court. When considering an argument ra ised on appeal, a reviewing court is limited to considering only the matters foun d in the record.
Volodkevich v. Volodkevich , 48 Ohio App.3d 313, 314 (1989). Moreover, the appellant has the duty to provide the reviewing court with a re cord of the facts, testimony, and evidentiary matters necessary to support the app ellant’s assignment of error. Id. See also App. R. 9(B) and 10(A). Without the dash camera footage, we are unable to determine whether it demonstrated that Deputy Gresham was justified in initiating a traffic stop of the vehicle based on Harris’s alleged failure toCase No. 1-21-30

-8- make a complete stop at the stop light. Consequently, we are u nable to determine whether Harris’s trial counsel performed deficiently by failing to pursue a meritorious suppression motion, and we presume regularity in th e proceedings below with respect to the traffic stop. See State v. Belknap , 11th Dist. Portage No. 2002-P-0021, 2004-Ohio-5636, ¶ 35; State v. Bradley , 7th Dist. Columbiana No. 11 CO 26, 2012-Ohio-5880, ¶ 71; State v. Ash , 7th Dist. Monroe No. 16 MO 0002, 2018-Ohio-1139, ¶ 31. {¶14} Next, even if we assume Harris is correct that Deputy Gresham w as not justified in stopping his vehicle based on his failure to m ake a full stop at the red light, Deputy Gresham testified at trial that he initiated the traffic stop, at least in part, because the vehicle’s license plate did not match the description of the vehicle’s registration. “There are two types of valid traffic stops: (1) where police have probable cause that a traffic violation has occurred or wa s occurring and (2) where police have reasonable articulable suspicion that crimina l activity has occurred.” State v. McMillon , 7th Dist. Columbiana No. 18 CO 0016, 2019-Ohio2716, ¶ 11. The Supreme Court of Ohio recently held that “when an officer encounters a vehicle the whole of which is painted a different color from the color listed in the vehicle-registration records and the officer beli eves, based on his experience, that the vehicle or its displayed license plates ma y be stolen, the officer has a reasonable, articulable suspicion of criminal activity an d is authorized toCase No. 1-21-30

-9- perform an investigative traffic stop.” State v. Hawkins , 158 Ohio St.3d 94, 2019- Ohio-4210, ¶ 2. Thus, even if Harris did make a complete stop at the intersection, as he alleges, Deputy Gresham could still have had reasonable, articulable suspicion of criminal activity based on the discrepancy between the vehic le’s registration and physical appearance and could have conducted a valid traffic st op on that basis. Accordingly, because the traffic stop was valid, there was no b asis for the evidence to be suppressed, and any motion to suppress filed by Harris’s trial counsel would have been denied. State v. Marneros , 8th Dist. Cuyahoga No. 109258, 2021-Ohio2844, ¶ 26. Without a basis for the motion to suppress, Harris ’s trial counsel’s decision not to file a motion to suppress was not ineffective a ssistance of counsel.
Id. {¶15} Harris’s assignment of error is overruled.
Conclusion {¶16} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the Lima Municipal
Court. Judgment Affirmed WILLAMOWSKI, P.J. and SHAW, J., concur. /jlrCase No. 1-21-30

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