COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71668 CITY OF LAKEWOOD Plaintiff-appellee JOURNAL ENTRY vs. AND MICHAEL GLASER OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: JANUARY 15, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Lakewood Municipal Court, Case No. 96-C- 1234 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: MATTHEW J. KING, ESQ. MICHAEL C. HENNENBERG, ESQ. Assistant Law Director JOHN A. FATICA, ESQ. City of Lakewood HENNENBERG & BROWN 12650 Detroit Avenue 30100 Chagrin Boulevard Lakewood, Ohio 44107 Suite 301 Cleveland, Ohio 44124-5704 -2- KARPINSKI, J.: Defendant-appellant Michael Glaser appeals from his jury conviction for operating a motor vehicle while under the influence of alcohol. Following a traffic stop on February 15, 1996, defendant was charged in the Lakewood Municipal Court with operating a motor vehicle while under the influence of alcohol in violation of Lakewood Municipal Ordinance Section 333.01(A). At approximately midnight, defendant was stopped for driving through a no thru street in violation of a Lakewood Ordinance. The officer stopped defendant to issue a warning for the violation, but immediately smelled alcohol about defendant's person. Defendant was unable on two occasions to properly recite the alphabet while he was in his vehicle. After he failed a series of field sobriety tests at the scene outside his vehicle, defendant was arrested. He made inculpatory oral and written statements after he was informed of his Miranda rights. Following his arrest, he refused to perform a breath alcohol test at the station. Defendant retained his own trial counsel and the matter proceeded to a jury trial beginning October 23, 1996. The prosecution presented testimony from three Lakewood police officers: patrolman Blake Currens, sergeant Brian Joyce and patrolman John Forristell. Officer Currens described in detail the circumstances of the arrest, which he recorded on an Alcohol Influence Report ( AIR ) form. Officer Currens testified that during the trip to the police station defendant stated, you and I -3- both know I'll blow over the limit. At the station, defendant completed the back of the AIR form stating that he had consumed five alcoholic beverages prior to the stop and that I can tell that I have been drinking. Currens conceded on cross-examination he did not remember the exact manner by which defendant failed the sobriety tests. Sergeant Joyce backed up Officer Currens at the scene, and Officer Forristell booked defendant at the station after his arrest. Neither Joyce nor Forristell evaluated defendant's condition at the time of his arrest. Defendant presented testimony from four witnesses after the trial court denied his motion for judgment of acquittal. Defendant, his employers Paul and Thomas Ream, and his employee Craig Cottingham, testified for the defense. They stated that they had a meeting at two bars to discuss business matters. Defendant testified as follows: Over the course of several hours he consumed four drinks, two at each bar. Injuries to his teeth, shoulder and back explained his poor performance on the sobriety tests. He denied operating his motor vehicle while he was under the influence of alcohol and explained he was unfamiliar with the area. Defendant also denied stating to Officer Currens that he would blow over the limit. The jury found defendant guilty as charged. The trial court sentenced defendant to serve ten days in jail but suspended execution of the sentence. In addition, the court suspended his driver's license for nine months, ordered him to pay a $720 fine, $500 of which was suspended, and placed defendant on one-year -4- probation with conditions. Through newly retained appellate counsel, defendant timely appeals. Defendant's first and second assignments of error challenge the sufficiency and manifest weight of the evidence to support his jury conviction as follows: I. APPELLANT'S CONVICTION IS VIOLATIVE OF HIS RIGHTS TO DUE PROCESS AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AS THIS CONVICTION IS BASED UPON INSUFFICIENT EVIDENCE. II. APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES [SIC] HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. These assignments lack merit. Defendant contends that his conviction for operating his motor vehicle while under the influence of alcohol is not supported by sufficient evidence and is against the manifest weight of the evidence. Defendant's sufficiency argument is based on his claim that Officer Currens did not observe him driving erratically and could not recall in detail the manner by which defendant failed the field sobriety tests. Concerning the manifest weight of the evidence, defendant argues his employers testified he had four drinks over a period of four hours and did not appear to them to be intoxicated. The Ohio Supreme Court recently clarified the standard governing these two arguments in State v. Thompkins (1997), 78 Ohio St.3d 380. The claim of insufficiency of the evidence is -5- determined by evaluating whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. Defendant admitted to drinking at least four alcoholic beverages and drove through a street marked no thru traffic. Officer Currens smelled alcohol about defendant's person. Currens also testified that defendant twice failed to properly recite the alphabet and failed four field sobriety tests. When viewed in the light most favorable to the prosecution, this evidence is sufficient to establish, beyond a reasonable doubt, that defendant operated a motor vehicle while under the influence of alcohol. We reject defendant's contention that the prosecution was required to prove that defendant operated his vehicle erratically and to provide the precise details concerning how he failed the field sobriety tests. At most, these matters affect the weight, rather than the sufficiency, of the prosecution's evidence.1 An arresting officer's testimony that defendant failed sobriety tests is admissible, relevant, and probative, even if he cannot remember the precise details of the tests ten months after an arrest. The standard governing claims that a conviction is against the manifest weight of the evidence requires an appellate court, after reviewing the entire record, weighing the evidence and all reasonable inferences, considering the credibility of the witnesses, and resolving the conflicts in the evidence, to conclude 1 See discussion infra. -6- the jury lost its way and created a manifest miscarriage of justice. State v. Thompkins, supra at 387. The evidence in this case indicates that defendant was stopped after leaving the second of two bars at which he drank alcohol that evening. He admitted to drinking a substantial quantity of alcohol, that is, at least four drinks. He maintained that someone bought him a fifth drink, but that he did not drink it. According to officer Currens, defendant also made inculpatory oral and written statements concerning his state of inebriation to the police prior to his refusal to take a breath alcohol test. Although defendant denied stating that he knew he would blow over the limit, he never challenged his written statement, made after his arrest, that he could tell he had been drinking. That his employers believed he was not intoxicated does not mandate an acquittal. Even if this court disregards any potential bias from their relationship with defendant and that they had also been drinking, the law does not require proving that defendant was intoxicated to establish an offense. Rather, the prosecution was required to prove only that defendant was operating his vehicle while under the influence of alcohol. While the prosecution's case was not overwhelming, we are unable to conclude that the jury lost its way and created a manifest miscarriage of justice when it reached its verdict. We expressly note that the jury had a superior opportunity to observe the witnesses when it evaluated their credibility and determined the weight to be given their testimony. -7- Accordingly, defendant's first and second assignments of error are overruled. Defendant's third assignment of error challenges the effectiveness of his trial counsel as follows: APPELLANT'S CONVICTION IS VIOLATIVE OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND/OR THE TRIAL COURT COMMITTED PLAIN ERROR AND APPELLANT'S CONVICTION SHOULD BE REVERSED. This assignment lacks merit. Defendant contends generally that he received ineffective assistance from his trial counsel. Specifically, he contends that counsel should have (1) requested a continuance to present medical evidence concerning an injury to his teeth, and (2) objected to a comment by the prosecutor during closing argument. It is well settled that to establish a claim of ineffective assistance of trial counsel, defendant must show (1) that counsel's performance was deficient, and (2) that the deficient performance resulted in prejudice. State v. Bradley (1989), 42 Ohio St.3d 136, syllabus paragraph two. To establish prejudice, defendant must prove that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been different. Id. at syllabus paragraph three. We find that defendant has failed to establish either deficient performance or prejudice in this case. Defendant first maintains on appeal that counsel should have obtained a continuance from the trial court to present the testimony of Dr. George Saridakis. He contends that Dr. Saridakis -8- would have supported his claim that physical injuries prevented defendant from performing the sobriety tests, but does not explain why a continuance would have been necessary to present his testimony. It is well established that the failure to subpoena a witness to testify at trial does not constitute ineffective assistance of counsel absent a showing that the testimony of the witness would assist in the defense. State v. Reese (1982), 8 Ohio App.3d 202. The record in this case does not support the claim. Without any indication of the content of Dr. Saridakis' proposed testimony, there is no basis for this court to find prejudice or that there is reasonable probability the result of the trial would have been different if such testimony had been presented. The proposed testimony, moreover, appears at most to have been cumulative and corroborative of other defense testimony. Defendant's remaining claim alleges that the prosecution's observation during closing argument--that the defense failed to produce a fourth witness who was drinking with defendant-- improperly shifted the burden of proof to the defendant. It is well established, however, that the prosecution may comment during closing argument on defendant's failure to produce a witness shown to have relevant knowledge as in this case. State v. Foster (1982), 8 Ohio App.3d 338. Defense testimony shows that the uncalled witness in this case, Mr. Grabowski, was drinking with defendant and the others that evening. The prosecution merely commented that this witness, -9- who was not called at trial, did not share employment relationships with defendant as the other witnesses defendant presented. The prosecutor openly questioned why this witness, who did not share the same potential interest in securing defendant's acquittal, was not called to testify. The argument was permissible and any objection would have been futile under the circumstances. The challenged statements did not improperly shift the burden of proof on any issue to defendant. To the contrary, the record demonstrates that the trial court properly instructed the jury that the burden of proof on all issues was borne by the prosecution, and that the prosecution had to prove each element of its case beyond a reasonable doubt. Accordingly, defendant's third assignment of error is overruled. Defendant's fourth assignment of error follows: APPELLANT'S CONVICTION SHOULD BE REVERSED AS THE CUMULATIVE EFFECT OF THE ASSIGNMENTS OF ERROR AS DISCUSSED ABOVE IS SUCH THAT APPELLANT WAS DENIED A FAIR TRIAL. This assignment lacks merit. Defendant contends that his three prior assignments of error, which we have individually found not to be well-taken, cumulate into reversible error. However, because we found no error, harmless or otherwise, occurred in any of these instances, we find no cumulative error to warrant reversal. Accordingly, defendant's fourth assignment of error is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Lakewood Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J., and DYKE, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .