[Cite as State v. Jefferson, 2012-Ohio-148.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO, 

 Plaintiff-Appellee, 

v. 

ANTOINE JEFFERSON, 

 Defendant-Appellant. 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 11 CAA 04 0033 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 10 CR I 04 0238 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 17, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

CAROL HAMILTON O'BRIEN ELIZABETH N. GABA 

PROSECUTING ATTORNEY 1231 East Broad Street 

DOUGLAS DUMOLT Columbus, Ohio 43205 

ASSISTANT PROSECUTOR 

140 N. Sandusky Street, 3rd Floor 

Delaware, Ohio 43015 
Wise, J. 

{¶1} Defendant-Appellant Antoine Jefferson appeals his conviction and 

sentence on tampering with evidence and obstructing official business, entered in the 

Delaware County Common Pleas Court following a jury trial.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} On April 8, 2010, Trooper Matthew Himes of the Ohio State Highway 

Patrol was working drug interdiction on Interstate 71 in Delaware County Ohio. At 

approximately 10:00 a.m., he was stationary, in a marked patrol car watching traffic 

pass by. At approximately 10:05 a.m., Trooper Himes observed a green Land Rover 

travelling northbound on I-71. As the vehicle passed him, Trooper Himes ran the 

license plate through the Law Enforcement Automated Data Systems (LEADS) which 

revealed that the Ohio driver's license of the vehicle's registered owner expired in 1999. 

Further, it showed the vehicle was purchased in July, 2009, in Ohio. 

{¶4} Trooper Himes pulled up beside the vehicle, identified the driver as the 

registered owner by his physical description, and initiated a traffic stop for driving 

without a valid license. Once the vehicle was stopped, Trooper Himes approached the 

vehicle and made contact with Appellant, the driver of the vehicle. 

{¶5} When asked, Appellant indicated that he did not have an Ohio driver's 

license. He indicated that he was a Georgia resident and had a Georgia driver's license. 

Appellant presented his Georgia driver's license to Trooper Himes, who returned to his 

cruiser to check its validity. 
{¶6} According to Trooper Himes, while at his vehicle, but before he had 

determined the validity of Appellant's license or his state or residency, he radioed 

Trooper Norman to bring his canine partner to the scene. According to Trooper Himes, 

at that time he had already learned that just four days prior to the traffic stop, Appellant 

had been convicted of driving without a valid license in Mansfield Municipal Court. He 

had also learned that the vehicle Appellant was driving had been purchased in Ohio 

nine months prior.

{¶7} While Trooper Himes was still awaiting the status of Appellant's license 

and checking his criminal history, Trooper David Norman and his canine partner arrived 

on the scene. Trooper Norman had his canine partner conduct a free-air sniff around the 

vehicle. At that time, the canine alerted on the vehicle for the odor of narcotics. When 

the canine alerted on Appellant's vehicle, the Troopers conducted a probable cause 

search of the motor vehicle. Appellant and his passenger were removed from the 

vehicle, Appellant was read his Miranda rights and then placed, without handcuffs, in 

the back of Trooper Himes' cruiser while the search was conducted.

{¶8} Prior to placing Appellant in the back of his cruiser, Trooper Himes asked 

him if he carried a knife or any kind of weapon. Appellant denied having any weapons 

and consented to a pat-down search for weapons. 

{¶9} Trooper Himes stated that while the other troopers were continuing the 

search of Appellant's vehicle, he returned to his cruiser and spoke with Appellant about 

the odor of narcotics in his vehicle. Appellant stated that there were no narcotics in the 

vehicle and that he had the vehicle cleaned a few days prior to the traffic stop. 
{¶10} Trooper Himes then left his cruiser and returned to Troopers Norman and 

Wilson, who were at the front of Appellant's vehicle. It was at this time that Trooper 

Wilson approached Appellant, and Trooper Himes attempted to search the engine 

compartment of the motor vehicle for concealed contraband. While Trooper Himes was 

attempting to locate a hood release for Appellant's vehicle, he noticed Trooper Wilson 

and Appellant in a struggle. Trooper Himes ran back to assist, but before he got back to 

his cruiser, Appellant had fallen down, gotten up, and was climbing over a barbed wire 

fence. Trooper Himes deployed his laser, but it was ineffective. 

{¶11} According to Trooper Wilson, he had approached the Appellant seated in 

Trooper Himes' cruiser and asked Appellant to exit the cruiser so that he could perform 

a search of Appellant’s person. Trooper Wilson stated that he had noticed a heightened 

level of nervousness throughout the traffic stop that did not dissipate as it does in the 

course of a typical traffic stop. Trooper Wilson explained that he was performing a 

consensual search for drugs based on the "nervousness" of the defendant, positive 

canine hit, and absence of contraband in the vehicle. 

{¶12} Trooper Wilson stated that he asked Appellant for permission to perform 

the search and that Appellant gave verbal consent. During the pat down, Trooper 

Wilson started on Appellant's right side and came down his right front pocket, down the 

side of his right leg, and back up the inside of his right leg. At no point did he manipulate 

any object to determine its identity." When he reached the inside of Appellant's right leg, 

he felt what he believed to be a plastic baggie containing crack cocaine. At that time, 

Appellant attempted to elbow Trooper Wilson in the head and started to run. Trooper 

Wilson grabbed his sweatshirt and held on and attempted to throw him to the ground. 
Unable to do so, Trooper Wilson spun him in a circle and let go. Appellant then 

proceeded to get up and take off running. The three troopers pursued him and called 

for him to stop. Two of the troopers attempted to stun Appellant with their tasers, but 

were unable to stop him from climbing over a barbed wire fence near the highway and 

fleeing the scene. 

{¶13} Trooper Himes, Trooper Norman, and Trooper Wilson pursued Appellant 

over the fence, while Sergeant Kemmer stayed with Appellant's companion and the 

cruisers. The troopers continued to chase Appellant for approximately two hundred 

yards to a small lake, which Appellant jumped into. Appellant swam out approximately 

thirty yards into the "muck," roughly chest deep in the water, and the troopers watched 

him destroying the suspected contraband. Appellant then returned to shore with his 

pants down around his legs, weighed down from the water and the mud. He also had 

cuts from the pursuit, so a squad was called to treat Appellant's injuries. Appellant was 

placed under arrest.

{¶14} On April 16, 2010, the Grand Jury of Delaware County indicted Appellant 

Antoine Jefferson on one count of Tampering with Evidence, in violation of R.C. 

§2929.12(A)(1), a third degree felony, and one count of Obstructing Official Business, in 

violation of R.C. §2921.31(A), a fifth degree felony. 

{¶15} On August 31, 2010, Appellant filed a motion to suppress.

{¶16} On October 8, 2010, a hearing was held on Appellant’s motion to 

suppress. 

{¶17} By Judgment Entry filed October 18, 2010, the trial court denied 

Appellant’s motion to suppress.
{¶18} On March 3, 2011, this matter proceeded to jury trial.

{¶19} The jury found Appellant guilty as charged.

{¶20} Appellant now appeals, assigning the following errors for review: 

ASSIGNMENTS OF ERROR

{¶21} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE 

APPELLANT'S FOURTH AMENDMENT RIGHTS TO THE U.S. CONSTITUTION AND 

ARTICLE ONE SECTION FOURTEEN OF THE OHIO CONSTITUTION BY 

OVERRULING HIS MOTION TO SUPPRESS EVIDENCE, AS 

{¶22} “a) THERE WAS NO LEGITIMATE REASON FOR THE UNDERLYING 

TRAFFIC STOP (PLAIN ERROR ANALYSIS), 

{¶23} “b) THE STOP'S SCOPE AND DURATION WERE IMPROPER AND THE 

DETAINMENT OF APPELLANT IN THE POLICE CRUISER WHILE THE POLICE 

ENGAGED IN A "FISHING EXPEDITION" WAS UNLAWFUL, 

{¶24} “c) THE POLICE HIDING EVIDENCE BY TURNING OFF THEIR 

MICROPHONES WAS UNLAWFUL, AND VIOLATED APPELLANT'S 5TH, 6TH, AND 

14TH AMENDMENT RIGHTS 

{¶25} “d) THE FIRST SEARCH WAS IMPROPER, AND 

{¶26} “e) THE SECOND SEARCH OF DEFENDANT'S BODY WAS 

UNLAWFUL. 

{¶27} “ALL EVIDENCE AND STATEMENTS OBTAINED AFTER THE SEARCH 

SHOULD HAVE BEEN SUPPRESSED AND THE CASE DISMISSED. 

{¶28} “II. THE TRIAL COURT COMMITTED STRUCTURAL, 

CONSTITUTIONAL AND/OR PLAIN ERROR TO THE PREJUDICE OF APPELLANT, 
AND THE JUDGE EXCEEDED HIS STATUTORY AUTHORITY BY INSERTING 

HIMSELF IN THE PLEA ARRANGEMENTS AND ORDERING APPELLANT THAT HE 

MUST ADMIT THAT HE POSSESSED DRUGS, WHEN HE DID NOT, AS A 

CONDITION OF ANY PLEA ARRANGEMENT. 

{¶29} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE 

PREJUDICE OF APPELLANT, WHEN IT STRUCK DEFENDANT'S OPENING 

STATEMENT AND QUESTIONS, CONVEYING TO THE JURY THE COURT'S VIEW 

ABOUT THE DEFENDANT'S FAILURE TO TESTIFY, AND ERRED WHEN IT DENIED 

THE DEFENSE MOTION FOR MISTRIAL. 

{¶30} “IV. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE 

PREJUDICE OF APPELLANT, BY CONVICTING APPELLANT, BECAUSE THIS 

CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE. EVIDENCE 

AND THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION. 

{¶31} “V. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF 

COUNSEL, IN VIOLATION OF HIS 6TH AMENDMENT RIGHTS, WHEN DEFENSE 

COUNSEL FAILED TO SHOW THE CD AT TRIAL AND FAILED TO HAVE 

APPELLANT TESTIFY.” 

I. 

{¶32} In his first assignment of error, Appellant argues that the trial court erred in 

overruling his motion to suppress. We disagree. 

{¶33} There are three methods of challenging on appeal a trial court's ruling on a 

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In 

reviewing a challenge of this nature, an appellate court must determine whether the 
findings of fact are against the manifest weight of the evidence. See State v. Fanning

(1982) 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597 

N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. Second, 

an appellant may argue that the trial court failed to apply the appropriate test or correct 

law to the findings of fact. See State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 

1141, overruled on other grounds. Finally, assuming the trial court's findings of fact are 

not against the manifest weight of the evidence and it has properly identified the law to 

be applied, an appellant may argue that the trial court incorrectly decided the ultimate or 

final issue raised in the motion to suppress. When reviewing this type of claim, an 

appellate court must independently determine, without deference to the trial court's 

conclusion, whether the facts meet the appropriate legal standard in any given case. 

State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 

85 Ohio App.3d 623, 627, 620 N.E.2d 906; and Guysinger, supra. 

{¶34} Here, Appellant challenges the trial court’s interpretation of the law and 

conclusion on the ultimate issues. Our review is therefore de novo. 

{¶35} Appellant alleges that the traffic stop was unconstitutionally delayed and 

further that the searches of his person were unconstitutional. Appellant also argues that 

the traffic stop was not based on a reasonable and articulable suspicion of criminal 

activity. 

{¶36} With regard to Appellant’s challenge to probable cause for the traffic stop, 

we find that Appellant did not raise this issue in his motion to suppress before the trial 

court. It is well established that a party cannot raise any new issues or legal theories 

for the first time on appeal." Dolan v. Dolan, 11th Dist. Nos. 2000-T-0154 and 2001-T-
0003, 2002-Ohio-2440, at ¶ 7, citing Stores Realty Co. v. Cleveland (1975), 41 Ohio 

St.2d 41, 43, 322 N.E.2d 629. "Litigants must not be permitted to hold their arguments 

in reserve for appeal, thus evading the trial court process." Nozik v. Kanaga (Dec. 1, 

2000), 11th Dist. No. 99-L-193, 2000 Ohio App. LEXIS 5615. We find that Appellant 

therefore has waived review of this issue by failing to raise it at the trial level. See State 

v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277. 

{¶37} However, even under a plain error analysis, we find that the trooper had a 

reasonable articulable suspicion for the traffic stop in this matter based on information 

he garnered through a random license plate check. Such check revealed that the 

registered owner of the vehicle had an expired driver’s license, and upon pulling 

alongside the vehicle, the trooper was able to see that Appellant fit the description of the 

registered owner. 

{¶38} We must next consider the propriety of the trooper's detention of Appellant 

and his vehicle at the traffic stop. We recognize the general rule that the scope and 

duration of an investigatory stop must last no longer than is necessary to effectuate the 

purpose for which the initial stop was made. See, e.g., State v. Bevan (1992), 80 Ohio 

App.3d 126, 129. 

{¶39} This Court has concluded: “[W]hen a motorist is lawfully detained pursuant 

to a traffic stop and when the purpose of the traffic stop has yet to be fulfilled, the Fourth 

Amendment is not violated when the officer employs a trained narcotics canine to sniff 

the vehicle for drugs.” State v. Latona, Richland App. No.2010-CA-0072, 2011-Ohio1253, ¶25, citing State v. Guckert (Dec. 20, 2000), Washington App. No. 99CA49, 2000-

Ohio-1958. 
{¶40} Furthermore, when detaining a motorist for a traffic violation, an officer 

may delay a motorist for a time period sufficient to issue a ticket or a warning, including 

the time sufficient to run a computer check on the driver's license, registration, and 

vehicle plates. State v. Brown, Tuscarawas App.No. 2009AP050024, 2010-Ohio-1110, ¶ 

22, citing State v. Batchili, 113 Ohio St.3d 403, 865 N.E.2d 1282, 2007-Ohio-2204, ¶ 12, 

and State v. Bolden, Preble App.No. CA2003-03-007, 2004-Ohio-184, ¶ 17.

{¶41} In the case sub judice, the trooper made a routine check with his 

dispatcher to check Appellant's license and warrant status. While he was awaiting a 

response, he decided to call a K9 unit to conduct an exterior drug sniff.

{¶42} We therefore conclude that the brief detention of Appellant in this instance 

to allow for the computer check on Appellant's driver’s license status and to conduct a 

non-invasive drug dog sniff of the car's exterior was also constitutionally valid. 

{¶43} Appellant also challenges the pat-down searches of his person. Appellant 

herein essentially argues that the evidence of his actions, which occurred immediately 

after he was being searched, should have been suppressed. We find the fundamental 

issue in this case, however, is whether Appellant's independent criminal activity would 

have been “fruit of the poisonous tree” and thus subject to suppression, even if we were 

to find the police seizure was illegal. 

{¶44} The Fourth Amendment prohibits unreasonable searches and seizures. 

“However, an observation of a fresh crime committed during or after the arrest is not to 

be suppressed even if the arrest is unlawful.” State v. Ali, 154 Ohio App.3d 493, 797 

N.E.2d 1019, 2003–Ohio–5150, ¶ 13. “The Fourth Amendment's exclusionary rule, 

which [the defendant] seeks to invoke, does not sanction violence as an acceptable 
response to improper police conduct. The exclusionary rule only pertains to evidence 

obtained as a result of an unlawful search and seizure.” Id. at ¶ 16, 797 N.E.2d 1019, 

quoting Akron v. Recklaw (Jan. 30, 1991), Summit App.No. 14671, 1991 WL 11392 

(additional citations omitted). 

{¶45} Here, we find that the conduct for which Appellant was arrested and 

charged, obstructing official business and tampering with evidence, was unrelated to 

and independent of such searches. 

{¶46} Based on the foregoing, we find that the trial court therefore correctly 

decided the ultimate issues raised in Appellant's motion to suppress. 

{¶47} Appellant’s first assignment of error is overruled. 

II. 

{¶48} In his second assignment of error, Appellant claims that the trial court 

erred in participating in the plea negotiations. We disagree. 

{¶49} In this case, Appellant challenged the State’s recitation of the facts. 

{¶50} Under Ohio law, trial courts may reject plea agreements and are not 

bound by a jointly recommended sentence. State v. Underwood, 124 Ohio St.3d 365, 

2010-Ohio-1, 922 N.E.2d 923, ¶ 28. The decision to accept or reject a plea bargain 

rests solely within the discretion of the trial court. State v. Asberry, 173 Ohio App.3d 

443, 2007-Ohio-5436, 878 N.E.2d 1082. 

{¶51} We find no abuse of discretion in the trial court’s refusal to accept 

Appellant’s plea. We therefore find Appellant’s argument not well-taken.
III.

{¶52} In his third assignment of error, Appellant argues that the trial court erred 

in not granting a mistrial. We disagree.

{¶53} During opening statements in this case, defense counsel made a number 

of statements concerning Appellant’s reasons for being uncomfortable with the patdown search, his fear of dogs and taser guns, the fact that he possessed a valid 

Georgia driver’s license and that he never intended to run from the police. A short while 

into the trial, defense counsel informed the trial court that he had decided to not have 

Appellant take the witness stand. Based on the lack of evidence in support of any the 

assertions made in opening statements, the trial court struck defense counsel’s opening 

statements. Following closing arguments, defense counsel moved the trial court for a 

mistrial based on the trial court’s statements to the jury striking the opening statements. 

{¶54} The granting of a mistrial rests within the sound discretion of the trial 

court, as it is in the best position to determine whether the situation at hand warrants 

such action. State v. Glover (1988), 35 Ohio St.3d 18, 517 N.E.2d 900; State v. Jones

(1996) 115 Ohio App.3d 204, 207, 684 N.E.2d 1304, 1306. 

{¶55} “A mistrial should not be ordered in a criminal case merely because some 

error or irregularity has intervened * * *.” State v. Reynolds (1988), 49 Ohio App.3d 27, 

33, 550 N.E.2d 490, 497. The granting of a mistrial is necessary only when a fair trial is 

no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9; 

State v. Treesh (2001), 90 Ohio St.3d 460, 480, 739 N.E.2d 749, 771. When reviewed 

by the appellate court, we should examine the climate and conduct of the entire trial, 

and reverse the trial court's decision as to whether to grant a mistrial only for a gross 
abuse of discretion. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602 N.E.2d 

790, 793–794, citing State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768, 

certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728; State v. 

Gardner (1998), 127 Ohio App.3d 538, 540–541, 713 N.E.2d 473, 475. 

{¶56} Upon review, we find no abuse of discretion in the trial court’s decision to 

strike the improper statements contained in the opening statements and provide the jury 

with a limiting instruction. 

{¶57} Appellant’s third assignment of error is overruled.

IV.

{¶58} In his fourth assignment of error, Appellant argues that his conviction is 

against the manifest weight and sufficiency of the evidence.

{¶59} In determining whether a verdict is against the manifest weight of the 

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire 

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

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly lost 

its way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 

N.E.2d 541, 1997–Ohio–52, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 

485 N.E.2d 717. 

{¶60} An appellate court's function when reviewing the sufficiency of the 

evidence is to determine 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. State v. Jenks (1991), 61 Ohio St.3d 259, 574 

N.E.2d 492, paragraph two of the syllabus. 

{¶61} In the instant case, Appellant was convicted of obstructing official 

business and tampering with evidence. 

{¶62} The elements of the offense of obstruction of official business are set forth 

in R.C. §2921.31(A), and are as follows: 

{¶63} “No person, without privilege to do so and with purpose to prevent, 

obstruct, or delay the performance by a public official of any authorized act within the 

public official's capacity, shall do any act that hampers or impedes a public official in the 

performance of the official's lawful duties.” 

{¶64} The crime of Tampering with Evidence is set forth in R.C. §2921.12(A)(1), 

and provides in pertinent part: 

{¶65} “(A) No person, knowing that an official proceeding or investigation is in 

progress, or is about to be or likely to be instituted, shall do any of the following: 

{¶66} “(1) Alter, destroy, conceal, or remove any record, document, or thing, with 

purpose to impair its value or availability as evidence in such proceeding or 

investigation;” 

{¶67} In this case, the State presented evidence to support the charge of 

obstructing official business. Appellant had been stopped for a traffic search and was 

being searched by a State Highway Patrolman when he took off running away from the 

officer. The officers were required to pursue Appellant and then call an ambulance to 

have Appellant’s minor injuries treated. Appellant’s actions delayed the performance of 

the completion of the traffic stop and search of Appellant’s person. 
{¶68} The State also presented evidence that Appellant ran away from the 

patrolmen immediately upon Trooper Himes’ discovery of an object in appellant’s pant 

that he believed to be crack cocaine. While the patrolmen were chasing Appellant, he 

ran into a lake, removed something from his pant and dropped it into the murky water. 

{¶69} The weight to be given to the evidence and the credibility of the witnesses 

are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 

180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183. 

{¶70} Viewing the evidence in a light most favorable to the prosecution, we 

conclude that a reasonable person could have found beyond a reasonable doubt that 

Appellant’s actions were done to “alter, destroy, conceal, or remove any record, 

document, or thing, with purpose to impair its value or availability as evidence in such 

proceeding or investigation.” 

{¶71} Based on the foregoing, we find that the State met its burden of production 

regarding each element of the crime and, accordingly, there was sufficient evidence to 

support Appellant's convictions. 

{¶72} “A fundamental premise of our criminal trial system is that ‘the jury is the 

lie detector.’ United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis 

added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining 

the weight and credibility of witness testimony, therefore, has long been held to be the 

‘part of every case [that] belongs to the jury, who are presumed to be fitted for it by their 

natural intelligence and their practical knowledge of men and the ways of men.’ Aetna 

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)”. 
United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266–1267, 140 

L.Ed.2d 413. 

{¶73} Appellant’s fourth assignment of error is overruled. 

V. 

{¶74} In his fifth and final assignment of error, Appellant argues that he was 

deprived of his right to the effective assistance of counsel. We disagree. 

{¶75} A claim of 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 

essential duties to Appellant. The second prong is whether Appellant was prejudiced by 

counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, 122 

L .Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. 

{¶76} In determining whether counsel's representation fell below an objective 

standard of reasonableness, judicial scrutiny of counsel's performance must be highly 

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties 

inherent in determining whether effective assistance of counsel was rendered in any 

given case, a strong presumption exists that counsel's conduct fell within the wide range 

of reasonable, professional assistance. Id.

{¶77} In order to warrant a reversal, Appellant must additionally show he was 

prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors 

were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable. 

Strickland 466 U.S. at 687, 694, 104 S.Ct. at 2064; 2068. The burden is upon the 
defendant to demonstrate that there is a reasonable probability that but for counsel's 

unprofessional errors, the result of the proceeding would have been different. Id. 

Bradley, supra at syllabus paragraph three. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra. 

{¶78} In the instant case, Appellant asserts trial counsel was ineffective for 

failing to introduce the video of the traffic stop and further, that counsel should have 

allowed him to testify in his own defense. 

{¶79} Decisions regarding which defense to pursue at trial is a matter of trial 

strategy “within the exclusive province of defense counsel to make after consultation 

with his client.” State v. Murphy, 91 Ohio St.3d 516, 524, 2001-Ohio-0112. This Court 

can only find counsel's performance regarding matters of trial strategy deficient if 

counsel's strategy was so “outside the realm of legitimate trial strategy so as ‘to make 

ordinary counsel scoff.’ ” State v. Woullard, 158 Ohio App.3d 31, 813 N .E.2d 964, 

2004-Ohio-3395, ¶ 39, quoting State v. Yarber (1995), 102 Ohio App.3d 185, 188, 656 

N.E.2d 1322. Further, the Ohio Supreme Court has recognized if counsel, for strategic 

reasons, decides not to pursue every possible trial strategy, defendant is not denied 

effective assistance of counsel. State v. Brown (1988), 38 Ohio St.3d 305, 319, 528 

N.E.2d 523. 

{¶80} Further, decisions regarding what witnesses to call at trial fall within trial 

strategy and, absent prejudice, generally will not constitute ineffective assistance of 

counsel. State v. Hessler, Franklin App. No. 01AP-1011, 2002-Ohio-3321; State v. 

Coulter (1992), 75 Ohio App.3d 219, 598 N.E.2d 1324. 
{¶81} In this case, we find the decision to not introduce the video of the traffic 

stop and not to call Appellant to the stand was a tactical decision, and the Ohio 

Supreme Court has stated “[w]e will ordinarily refrain from second-guessing strategic 

decisions counsel make at trial, even where counsel's trial strategy was questionable. 

State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402 N.E.2d 1189.” State v. Myers (2002), 

97 Ohio St.3d 335, 362, 780 N.E.2d 186, 217. 

{¶82} Further, the trial court in this case confirmed with Appellant that it was his 

decision not to testify. (T. at 173). 

{¶83} Appellant’s fifth assignment of error is overruled. 

{¶84} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Delaware County, Ohio, is affirmed. 

Judgment affirmed. 

By: Wise, J. 

Gwin, P. J., and Delaney, J., concur. 
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

ANTOINE JEFFERSON : 

 : 

 Defendant-Appellant : Case No. 11 CAA 04 0033 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed. 

 Costs assessed to Appellant. 

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 JUDGES