[Cite as State v. Gray, 2024-Ohio-347.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vsJAMAL H. GRAY

Defendant-Appellant

JUDGES:

: Hon. Patricia A. Delaney, P.J.

: Hon. W. Scott Gwin, J.

: Hon. Andrew J. King, J.

:

:

: Case No. 2023 CA 00022

:

:

: OPINION

CHARACTER OF PROCEEDING: Appeal from the Alliance Municipal Court, 

Case No. 2022 TRC 1482

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 1, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAITLYN R. WEYER AARON KOVALCHIK

Alliance Law Director 116 Cleveland Ave. N.W., Ste. 808

470 East Market Street Canton, OH 44702

Alliance, OH 44601
Stark County, Case No. 2023 CA 00022 2

Gwin, J.

{¶1} Defendant-appellant Jamal Henry Gray [“Gray”] appeals his conviction after 

a jury trial in the Alliance Municipal Court, Stark County Ohio.

Facts and Procedural History

{¶2} Around 5:30 p.m. on July 10, 2022, Gray was driving his car on South Union 

Street. Patrolman Christian Tussey noticed that the vehicle had dark window tint. 

Patrolman Tussey activated his lights and sirens. Gray continued to drive, stopping for 

two stop signs along the way. T. at 70. Gray testified that he was unaware of the officer’s 

siren because he had music playing and was attempting to get to his mother’s home 

because she had just informed Gray that his grandfather had passed away. T. at 114. 

Gray stopped his car in front of his mother’s home. Id. The encounter was recorded on 

Patrolman Tussey’s point of view camera. T. at 67; State’s Exhibit 1. As the officer 

approached, Gray rolled down the rear driver’s side window because the front driver’s 

side window was broken. T. at 76-78;115; State’s Exhibit 1.

{¶3} Patrolman Tussey testified that he could smell a strong odor of burnt 

marijuana coming out of the vehicle. T. at 70. He further observed Gray throw a cup inside 

the car. Id. Fearing for his safety, Patrolman Tussey asked Gray to get out of his car. Id. 

Patrolman Tussey placed Gray in handcuffs at that time. Id. 

{¶4} Gray informed the officer that he had a medical marijuana card.1Id. at 71. 

Patrolman Tussey further testified that after Gray was outside the car, he could detect the 

odor of burnt marijuana both on Gray’s person and from the inside of Gray’s car. T. at 79.

1 R.C. 3796.22 mandates that qualifying individuals who obtain an Ohio Medical Marijuana Control program 

registry identification card will not be arrested or prosecuted for possessing or using medical marijuana, or 

for possessing any paraphernalia or accessories specified in rules adopted under section 3796.03 of the
Stark County, Case No. 2023 CA 00022 3

{¶5} Patrolman Tussey used a tint meter and determined that Gray’s driver’s side 

window was too dark. T. at 72; 78. Patrolman Tussey observed no other traffic violations. 

T. at 81-83; 121-122. Gray did pass the Horizontal Gaze Nystagmus test administer by 

Patrolman Tussey. T. at 84. Without objection, Tussey testified that he then retrieved a 

“UV” pen light and used it to observe Gray’s tongue, which, according to Tussey, exhibited 

markings consistent with recent marijuana smoking.2 Patrolman Tussey also testified that 

Gray's eyes were red and semi-glossy. T. at 73; 78. Patrolman Tussey then searched 

Gray’s car; however, he did not find either drugs or drug paraphernalia3. T. at 73; 80-81. 

Patrolman Tussey found a pack of cigars, which the officer characterized were commonly 

used for smoking marijuana. T. at 80-81. Patrolman Tussey testified that Gray admitted 

to smoking marijuana approximately thirty minutes prior to being stopped. T. at 74. 

{¶6} Gray testified that he had removed his medical marijuana from his car 

earlier in the day prior to being stopped. T. at 117. Gray further testified that Patrolman 

Tussey asked him, “like when did you last smoke,” to which Gray replied about thirty 

minutes ago; however, Gray was referring to smoking a cigar not smoking marijuana. T. 

at 118.

{¶7} Gray was placed under arrest for driving while under the influence of

marijuana. Tussey then transported Gray to the police station, read him the Ohio BMV

2255 form regarding chemical tests, and asked him for a urine sample. T. at 75. Gray

Revised Code. The medical marijuana card was not produced for the patrolman or during Gray’s jury trial. 

T. at 73; 82; 126-127.

2 We note as an aside that Patrolman Tussey was not qualified as a Drug Recognition Expert 

(“DRE”) nor does the record contain any scientific basis for the testimony that a UV light can detect 

marihuana residue in a suspect’s mouth. 

3 See note 1.
Stark County, Case No. 2023 CA 00022 4

submitted the sample. Patrolman Tussey testified that he placed the sample into a box, 

stored it temporarily in the refrigerator, then sent it to the Ohio State Patrol crime lab for 

testing. T. at 75-76.

{¶8} Lindsey Mayfield, who is employed for the Ohio State Highway Patrol crime 

lab, testified regarding her testing of Gray’s urine sample. Mayfield testified that the per 

se limit for marijuana metabolite in someone's urine according to the Ohio Revised Code 

is 35 nanograms per milliliter. T. at 97. Mayfield testified that the results she found in 

analyzing Gray's urine was that it contained a marijuana metabolite greater than 200 

nanograms per milliliter. Id.

{¶9} Gray was originally charged with OVI “under the influence” in violation of 

R.C. 4511.19(A)(1)(a). On September 22, 2022, trial counsel for Gray filed a Motion to 

Withdraw as counsel via fax. Counsel's motion was denied on the following day, because 

"no other counsel has filed a notice of appearance."

{¶10} On November 16, 2022, the state filed an Amended Complaint alleging OVI 

“prohibited level” [urine] in violation of R.C. 4511.19(A)(1)(j). 

{¶11} The jury trial commenced on January 26, 2023 and concluded the same 

day. Prior to the start of Gray’s jury trial, the trial court granted the state’s motion and 

dismissed the OVI “under the influence” in violation of R.C. 4511.19(A)(1)(a). T. at 3.

{¶12} The jury found Gray guilty of the charge of OVI, Prohibited Concentration of 

Controlled Substances or Metabolites (Urine) in violation of R.C.4511.19(A)(1)(j). The trial 

court found Gray guilty of a violation of tinted windows under Alliance City Ordinance 

337.28 (A)(1). T. at 154. Gray was sentenced to six days jail or six days in the driver’s 
Stark County, Case No. 2023 CA 00022 5

intervention program, a $775.00 fine; six points on his driver’s license, a one-year driver's 

license suspension with limited privileges, and a $35.00 fine for the window tint. 

Assignments of Error

{¶13} Gray raises two Assignments of Error,

{¶14} “I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL 

BECAUSE COUNSEL FAILED TO RAISE AND ARGUE A MOTION TO SUPPRESS THE 

RESULTS OF APPELLANT'S URINE TEST WHICH CAUSED PREJUDICE TO 

APPELLANT.

{¶15} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO 

INQUIRE FURTHER REGARDING TRIAL COUNSEL'S MOTION TO WITHDRAW.”

I.

{¶16} In his First Assignment of Error, Gray contends that he was denied the 

effective assistance of counsel. Specifically, he argues that counsel was ineffective for 

failing to raise and argue that Patrolman Tussey did not have probable cause to arrest 

Gray for OVI and subsequently transport Gray to the police station and request a urine 

sample; nor did Patrolman Tussey have a reasonable, articulable suspicion of impairment 

that Gray was driving under the influence in order to prolong his stop for the tinted 

windows violation. 

Standard of Appellate Review

{¶17} To obtain a reversal of a conviction based on ineffective assistance of 

counsel, the defendant must prove (1) that counsel’s performance fell below an objective 

standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the 

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. 
Stark County, Case No. 2023 CA 00022 6

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 

693(1984). A defendant’s failure to satisfy one prong of the Strickland test negates a 

court’s need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).

{¶18} Trial counsel’s failure to file a suppression motion does not per se constitute 

ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000–Ohio–

0448; Accord, State v. McFadden, 5

th Dist. Ashland No. 22-COA-012, 2023-Ohio-1630, 

citing State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56. Counsel can 

only be found ineffective for failing to file a motion to suppress if, based on the record, the 

motion would have been granted. State v. Lavelle, 5th Dist. No. 07 CA 130, 2008–Ohio–

3119, at ¶ 47; State v. Cheatam, 5th Dist. No. 06–CA–88, 2007–Ohio–3009, at ¶ 86. The 

defendant must further show that there is a reasonable probability that the outcome would 

have been different if the motion had been granted or the defense pursued. See 

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986); 

see, also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v. 

Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

Issue for Appellate Review: Whether there is a reasonable probability a motion 

to suppress would have been granted.

{¶19} The Ohio Supreme Court has held,

“[W]hen detaining a motorist for a traffic violation, an officer may 

delay the motorist for a time period sufficient to issue a ticket or a warning. 

State v. Keathley (1988), 55 Ohio App.3d 130, 131 [562 N.E.2d 932]. This 

measure includes the period of time sufficient to run a computer check on 
Stark County, Case No. 2023 CA 00022 7

the driver’s license, registration, and vehicle plates. State v. Bolden, Preble 

App. No. CA2003–03–007, 2004–Ohio–184 [2004 WL 77617], ¶ 17, citing 

Delaware v. Prouse (1979), 440 U.S. 648, 659, 99 S.Ct. 1391 [59 L.Ed.2d 

660]. “In determining if an officer completed these tasks within a reasonable 

length of time, the court must evaluate the duration of the stop in light of the 

totality of the circumstances and consider whether the officer diligently 

conducted the investigation.” State v. Carlson (1995), 102 Ohio App.3d 

585, 598–599 [657 N.E.2d 591], citing State v. Cook (1992), 65 Ohio St.3d 

516, 521–522 [605 N.E.2d 70], and U.S. v. Sharpe (1985), 470 U.S. 675, 

105 S.Ct. 1568 [84 L.Ed.2d 605].

State v. Batchili, 113 Ohio St.3d 403, 2007–Ohio–2204, 865 N.E.2d 1282, ¶ 12. In order 

to justify a continued detention beyond the normal period required to issue a citation the 

officer must have a “reasonable, articulable suspicion of criminal activity beyond that 

which prompted the initial stop.” Batchili, ¶ 15. “Reasonable suspicion is “* * * something 

more than an inchoate or unparticularized suspicion or hunch, but less than the level of 

suspicion required for probable cause.” State v. Shepherd, 122 Ohio App.3d 358, 364, 

701 N.E.2d 778 (2nd Dist. 1997). “A court will analyze the reasonableness of the request 

based on the totality of the circumstances, viewed through the eyes of a reasonable and 

prudent police officer on the scene who must react to events as they unfold.” State v. 

Farey, 5th Dist. Stark No. 2017CA00137, 2018-Ohio-1466, ¶ 23, citing Village of Kirtland 

Hills v. Strogin, 6th Dist. Lake App. No. 2005–L–073, 2006-Ohio-1450, ¶ 13 (internal 

citation omitted); See also, State v. Matteucci, 11th Dist. No. 2001–L–205, 2003–Ohio–

702, ¶ 30, citing State v. Bobo, 37 Ohio St.3d 177, 178, 524 N.E.2d 489(1988).
Stark County, Case No. 2023 CA 00022 8

{¶20} In Ohio, it is well settled that, where a non-investigatory stop is initiated and 

the odor of alcohol is combined with glassy or bloodshot eyes and further indicia of 

intoxication, such as an admission of having consumed alcohol, reasonable suspicion 

exists. State v. Wells, 2nd Dist. Montgomery No. 20798, 2005-Ohio-5008; State v. 

Cooper, 2nd Dist. Clark No. 2001-CA-86, 2002-Ohio-2778; State v. Robinson, 2nd Dist. 

Greene No. 2001-CA-118, 2002-Ohio-2933; State v. Mapes, 6th Dist. Fulton No. F-04-

031, 2005-Ohio-3359 (odor of alcohol, ‘slurred speech’ and glassy and bloodshot eyes); 

Village of Kirtland Hills v. Strogin, 11th Dist. Lake No. 2005-L-073, 2006-Ohio-1450 ; 

State v. Beeley, 6th Dist. Lucas No. L-05-1386, 2006-Ohio-4799, ¶16, New London v. 

Gregg, 6th Dist. Huron No. H-06-030, 2007-Ohio-4611; State v. Bright, 5th Dist. Guernsey 

No. 2009-CA-28, 2010-Ohio-111, ¶22. We see no reason why the odor of burnt marijuana 

should not be subject to the same analysis as the odor of alcohol. 

{¶21} In the case at bar, Patrolman Tussey testified that he could smell a strong 

odor of burnt marijuana emanating from the car as he spoke with Gray4. After removing 

Gray from the car, Patrolman Tussey testified he could smell the odor on Gray’s person. 

In addition, Patrolman Tussey testified that his suspicion that Gray was under the 

influence was based upon Gray’s slow response to the signal from Patrolman Tussey to 

stop; Gray’s bloodshot and glassy eyes and Gray’s turbulent behavior in throwing a cup 

inside his car in response to the officer’s approach. Finally, Patrolman Tussey understood 

Gray’s response to the question of when the last time Gray smoked to be in response to 

the smell of burnt marijuana. There was no testimony from Patrolman Tussey that the 

4 The smoking or combustion of medical marijuana is prohibited. R.C. 3796.06(B)(1).
Stark County, Case No. 2023 CA 00022 9

patrolman smelled cigar smoke or that he was asking Gray about smoking cigars as 

opposed to marijuana. Further, as Gray admits, the evidence is devoid of any field 

sobriety tests other than the sole reference to Gray passing the HGN test. 

{¶22} While there may be an innocent or non-impairment reason that a 

defendant’s eyes are bloodshot and glassy, this “does not diminish the relevance of these 

factors for the question of whether the trooper reasonably suspected [the defendant] was 

intoxicated.” State v. Ashbury, 12th Dist. Clinton No. CA 2021-02-003, 2021-Ohio-2788, 

¶16 quoting State v. Koogler, 12th Dist. Preble No. CA2010-04-006, 2010-Ohio-5531, 

¶16.

{¶23} Based upon the totality of the circumstances, we find Patrolman Tussey 

relied upon specific, articulable facts giving rise to a reasonable suspicion Gray was 

driving under the influence, and therefore an extension of the initial detention for the 

performance of field sobriety testing was justified.

{¶24} Probable cause to arrest for OVI need not arise solely from a suspect’s field 

sobriety tests. State v. Homan, 89 Ohio St.3d at 427, 732 N.E.2d 952 (2000) superseded 

by statute on other grounds as recognized in State v. Boczar, 113 Ohio St.3d 148, 2007-

Ohio-1251, 863 N.E.2d 155. Probable cause to arrest exists when, at the moment of the 

arrest, “the facts and circumstances within [the arresting police officer’s] knowledge * * * 

were sufficient to warrant a prudent man in believing that the petitioner had committed or 

was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 

(1964); see, also, State v. Timson, 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974). The 

existence of probable cause is determined by examination of the “‘totality’ of facts and 

circumstances within an officer’s knowledge.” State v. Miller, 117 Ohio App.3d 750, 761, 
Stark County, Case No. 2023 CA 00022 10

691 N.E.2d 703 (1997). “The totality of the facts and circumstances can support a finding 

of probable cause to arrest even where no field sobriety tests were administered or where 

* * * the test results must be excluded for lack of strict compliance.” Homan, 89 Ohio 

St.3d at 427, 732 N.E.2d 952 superseded by statute on other grounds as recognized in 

State v. Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155.

{¶25} The case law agrees that probable cause to arrest may exist if supported 

by such factors as: evidence that the defendant caused an automobile accident; a strong 

odor of alcohol emanating from the defendant; an admission by the defendant that he or 

she was recently drinking alcohol; and other indicia of intoxication, such as red eyes, 

slurred speech, and difficulty walking. Oregon v. Szakovits, 32 Ohio St.2d 271, 291 

N.E.2d 742 (1972); Fairfield v. Regner, 23 Ohio App.3d 79, 84, 491 N.E.2d 333 (12th 

Dist. 1985); State v. Bernard, 20 Ohio App.3d 375, 376, 486 N.E.2d 866 (9th Dist. 1985); 

Westlake v. Vilfroy, 11 Ohio App.3d 26, 27, 462 N.E.2d 1241 (8th Dist. 1983); State v. 

Judy, 5th Dist. No. 2007-CAC-120069, 2008-Ohio-4520, 2008 WL 4118256, ¶27. State 

v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, ¶15.

{¶26} Based on Patrolman Tussey’s testimony as we have already set forth, we 

find that the totality of facts and circumstances supported a finding of probable cause to 

arrest Gray for driving under the influence.

{¶27} As there is not a reasonable probability that a motion to suppress the 

detention or the arrest of Gray would have been granted, trial counsel was not ineffective 

in failing to file a motion to suppress.

{¶28} Gray’s First Assignment of Error is overruled.
Stark County, Case No. 2023 CA 00022 11

II.

{¶29} In his Second Assignment of Error, Gray argues that the trial judge abused

his discretion in failing to conduct an inquiry into trial counsel's motion to withdraw to

determine whether there was a breakdown in the attorney-client relationship which

would jeopardize Gray’s right to effective assistance of counsel.

Standard of Appellate Review

{¶30} The right to competent counsel does not require that a criminal defendant 

develop and share a “meaningful relationship” with his attorney. Morris v. Slappy, 461 

U.S. 1, 13, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610(1983); State v. Blankenship (1995), 

102 Ohio App.3d 534, 657 N.E.2d 559(1995), “ * * * [A]n indigent defendant is entitled to 

the appointment of substitute counsel only upon a showing of good cause, such as a 

conflict of interest, a complete breakdown in communication, or an irreconcilable conflict 

which leads to an apparently unjust result.” State v. Green, 5

th Dist. Stark. No.

1996CA00058, 1996 WL 488804(August 19, 1996), citing State v. Pruitt, 18 Ohio App.3d 

50, 57, 480 N.E.2d 499(1984).

{¶31} Because a trial court’s decision on substitution of trial counsel is so factspecific, it deserves deference; a reviewing court may overturn it only for an abuse of 

discretion. Martel v. Clark, 565 U.S. 648, 663-664, 132 S.Ct. 1276, 182 L.Ed.2d 

135(2012). Accord, State v. Williams, 99 Ohio St.3d 493, 513, 794 N.E.2d 27, 2003-Ohio4396, citing United States v. Iles, 906 F.2d 1122,1130–1131, fn. 8 (6th Cir. 1990); State 

v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶70.

{¶32} An abuse of discretion can be found where the reasons given by the court 

for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or 
Stark County, Case No. 2023 CA 00022 12

where the judgment reaches an end or purpose not justified by reason and the evidence. 

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship 

of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 

5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.

Issue for Appellate Review: Whether the trial judge’s decision denying defense 

counsel’s motion to withdraw was clearly untenable, legally incorrect, amounted to a 

denial of justice, or reaches an end or purpose not justified by reason and the evidence.

{¶33} On September 23, 2022, Gray’s attorney filed a motion to withdraw. [Docket 

Entry No. 16]. The motion read,

Now comes Counsel for Defendant Jamal Gray who respectfully 

moves this Honorable Court to grant this Motion to Withdraw as Counsel in 

the above-captioned case. Defendant has informed Counsel that he seeks 

to end Counsel’s representation and hire new counsel. A final pre-trial 

hearing in this case is scheduled for November 14, 2022 AM, and a jury trial 

scheduled for November 17, 2022 at 8:30 AM.

WHEREFORE, Counsel for Defendant respectfully moves to 

withdraw as Counsel.

{¶34} By Order filed September 23, 2022, the trial judge denied the Motion “as no 

counsel has filed a notice of appearance.” [Docket Entry No. 17].

{¶35} The need for an inquiry by the trial judge into the circumstances surrounding 

a request to discharge appointed counsel and appoint substitute counsel will not be 

recognized where the defendant has not evidenced his dissatisfaction or wish to remove 

his appointed counsel. United States v. Iles, 906 F.2d 1122, 1131 (6th Cir. 1990).
Stark County, Case No. 2023 CA 00022 13

{¶36} Neither Gray nor counsel requested the trial judge remove appointed 

counsel and appoint new counsel. Neither Gray nor counsel expressed in the motion that 

a conflict of interest existed, a complete breakdown in communication had occurred, or 

that there was an irreconcilable conflict between counsel and Gray. In the case at bar, 

neither Gray nor his attorney ever expressed to the trial judge that Gray was dissatisfied 

with his appointed counsel; rather the trial judge was told that Gray was going to hire 

private counsel.

{¶37} Gray has failed to show the trial judge’s decision overruling his trial 

counsel’s motion to withdraw was clearly untenable, legally incorrect, amounted to a 

denial of justice, or reaches an end or purpose not justified by reason and the evidence.

Accordingly, Gray’s Second Assignment of Error is overruled.

{¶38} The judgment of the Alliance Municipal Court, Stark County, Ohio is 

affirmed.

By Gwin, J.,

Delaney, P.J., and

King, J., concur