COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72435 STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND RALPH KENT : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT : JUNE 18, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas, Case No. CR-332507 JUDGMENT : Affirmed DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John R. Mitchell, Esq. John Clough, Esq. Assistant Prosecutors The Justice Center 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 For defendant-appellant: James R. Willis, Esq. Courthouse Square Building 310 Lakeside Avenue N. W. Suite #595 Cleveland, Ohio 44113 MICHAEL J. CORRIGAN, J.: Ralph Kent, defendant-appellant, appeals from his convictions in the Cuyahoga County Court of Common Pleas, Criminal Division, -2- Case No. CR-332507, of the offenses of felonious assault, attempted rape and kidnapping, each with a prior aggravated felony specification. Defendant-appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. On September 20, 1995 at approximately 6:00 a.m., Ms. Csilla Korossey, a forty-eight-year-old legal secretary, was on her way to the bus stop at West 74th Street and Detroit Avenue in Cleveland, Ohio. Ms. Korossey was on her way to work that morning when she was attacked from behind and dragged into a nearby parking lot. She was punched in the mouth numerous times during the struggle. Once in the parking lot, Ms. Korossey's attacker forcibly removed her underwear and attempted to rape her. Somehow, she managed to fend off the attack and proceeded to the corner of West 74th and Detroit where she received assistance from Ms. Linda Wright, a neighbor, and an RTA bus driver. Ms. Korossey was taken to Lutheran Medical Center where she was treated for her injuries which included plastic surgery on her upper lip, replacement of a broken tooth and stitches in her chin. Ms. Korossey gave the Cleveland Police a description of her attacker as a black male in his 20's or 30's, taller than her, with a beard, wearing a jacket and dark pants. On the morning of the attack, Ms. Linda Wright, a neighbor of Ms. Korossey's was outside of her home at approximately 6:00 a.m. waiting for her sister. At that time, Ms. Wright noticed a cream colored Mercury Cougar drive onto the street and park. The driver, -3- a dark-skinned male wearing a shiny red jacket, exited the car and proceeded toward West 74th and Detroit in the direction from which he had just come. After the male turned the corner, Ms. Wright heard what seemed to be a woman's voice arguing with someone. Ms. Wright then walked over to the Mercury Cougar and wrote down the license plate number. Soon after, the male returned to the automobile and drove off. Ms. Wright then got into her car and drove around the block where she discovered Ms. Korossey at the bus stop on Detroit Avenue bleeding from cuts to her mouth and face. Ms. Korossey told Ms. Wright that a man had tried to rape her. Ms. Wright informed the Cleveland Police Department of the license plate number she had written down of the Mercury Cougar and a description of the driver. Later that day, Ms. Wright accompanied the police to the parking lot where Ms. Korossey had been attacked at which time she discovered a pair of women's underwear which Ms. Korossey identified as her own. On September 29, 1995, Officer Richard Tusing, of the Cleveland Police Department, was on zone car patrol when he observed defendant-appellant operating his automobile at approximately 2:26 a.m. Upon checking the license plate, Officer Tusing discovered that the automobile had been involved in a suspected felonious assault, attempted rape and kidnapping. Officer Tusing stopped defendant-appellant's automobile and explained defendant-appellant's Miranda Rights. Defendant-appellant indicated that he understood his rights. At this point, Officer -4- Tusing asked defendant-appellant if he ever allowed anyone else to operate his automobile to which defendant-appellant replied no. (T. 152). Defendant-appellant was then placed under arrest and his car was impounded. At the time of the arrest, Officer Tusing observed a red jacket inside defendant-appellant's automobile. After defendant-appellant's automobile was towed to the impound lot, Tina Wolff, a technician from the Scientific InvestigationUnit of the Cleveland Police Department, conducted a physical examination of the red satin baseball jacket discovered in defendant-appellant's automobile. As a result of the examination, Ms. Wolff discovered four separate areas on the jacket which had been stained with blood. Consequently, samples of blood from the jacket along with samples of defendant-appellant's blood were submitted to the Cuyahoga County Coroner's Office and Cellmark Laboratories of Germantown, Maryland. A sample of the victim's blood was also submitted. The test results determined that the blood discovered on defendant-appellant's jacket matched that of the victim's but did not match defendant-appellant's blood. On January 16, 1996, defendant-appellant was indicted by the Cuyahoga Grand Jury in a three-count indictment. The first count of the indictment charged defendant-appellant with felonious assault in violation of R.C. 2903.11. The second count of the indictment charged defendant-appellant with attempted rape in violation of R.C. 2923.02 and R.C. 2907.02. The third and final count of the indictment charged defendant-appellant with kidnapping -5- in violation of R.C. 2905.01. Each count contained an aggravated felony specification arising out of prior convictions on or about December 28, 1978, of the offenses of kidnapping and rape, in violation of R.C. 2905.01 and R.C. 2907.02 respectfully. On January 31, 1997, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all three counts contained in the indictment. Prior to trial, the defense learned through pre-trial discovery that the state intended to present certain DNA evidence at defendant-appellant's trial to demonstrate that he was, in fact, the attacker. As a result, defendant-appellant requested that an independent DNA expert be appointed for the defense at state's expense. The trial court denied defendant-appellant's request. Defendant-appellant renewed this motion immediately prior to trial. The trial court denied it once again finding: THE COURT: This was mentioned by Mr. Tolliver, a request orally at the last pre-trial, at which time the defendant was referred to the psych clinic. The motion was denied at that time. I am going to deny it now. Even as late as the time it was of the referral, I believe that was late in the course of this case. And furthermore, because the defendant is not indigent, he has a private attorney, I am going to deny the motion. (T. 13). Defendant-appellant did not file a motion to suppress evidence in the underlying case. The case proceeded to trial. The state presented the testimony of Linda Wright, the victim Csilla Korossey, Tina Wolff, other lab technicians and members of the Cleveland Police Department, and Melissa Weber, a forensic examiner from Cellmark Laboratories, who testified regarding the DNA -6- analysis and results. Defendant-appellant's case consisted of the testimony of his minister, his girlfriend and himself. On March 13, 1997, the jury returned verdicts of guilty on all counts contained in the indictment. On April 7, 1997, defendant- appellant was sentenced to a twelve to fifteen-year term of incarceration on counts one and two; and a fifteen to twenty-five year term of incarceration on count three. All sentences were ordered to be served consecutively to each other. On April 30, 1997, defendant-appellant filed a timely notice of appeal from the judgment of the trial court. Defendant-appellant's first assignment of error states: I. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN, FOR REASONS THAT CAN NEVER BE VALIDATED OR DEFENDED, HIS TRIAL COUNSEL INEXCUSABLY FAILED TO FILE A MOTION TO SUPPRESS, WHEN THE NEED FOR SUCH A MOTION WAS CLEARLY MANIFEST. Defendant-appellant argues, through his first assignment of error, that trial counsel's failure to file a motion to suppress evidence in the underlying case constituted ineffective assistance of counsel. Specifically, defendant-appellant maintains that the warrantless stop of his automobile by the Cleveland Police and his subsequent arrest were illegal since the police lacked the requisite probable cause to justify the initial stop. It is defendant-appellant's contention that, since the warrantless detention and arrest by the Cleveland Police was illegal, the subsequent search of the vehicle was also illegal and any evidence seized as a result of the illegal search should have been subject to exclusion through a properly filed motion to suppress evidence. -7- Defendant-appellant maintains further that the seizure of the red jacket from his automobile was illegal as it was not done in accordance with the principles of a valid inventory search but rather, as an aspect of an ongoing criminal investigation. Therefore, the DNA evidence obtained from the jacket should also have been the subject of a suppression motion. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 -8- N.E.2d 623 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 361, 364-365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. *** Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the 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. State v. Bradley, supra, at 141, 142. The Sixth Amendment to the United States Constitution does not require defense counsel to file a motion to suppress in every case. State v. Flors (1987), 38 Ohio App.3d 133, 139. A criminal conviction will not be reversed on appeal on the ground of ineffective assistance of counsel solely because defense counsel failed to file a timely motion to suppress evidence, where the record does not support the conclusions that the evidence in question was illegally obtained. State v. Gibson (1980), 69 Ohio App.2d 91, 95. However, where an attorney fails to file a motion to suppress evidence, which at least arguably could dispose of a criminal charge against the defendant, the defendant may be -9- deprived of the effective assistance of competent counsel. State v. Woolum (1976), 47 Ohio App.2d 313. In the case sub judice, the threshold issue for this court's determination is, as defendant-appellant maintains, whether the traffic stop, subsequent arrest and inventory search of defendant- appellant's automobile by the Cleveland Police was an illegal search. Defendant-appellant argues that the traffic stop was illegal since the police lacked probable cause to proceed. The United States Supreme Court set forth the basic standard for reviewing the propriety of a traffic stop in Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868 120 L.Ed.2d 889 and Delaware v. Prouse (1979), 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660. Under this standard, a law enforcement officer may stop a vehicle when the officer has a reasonable suspicion, based on specific and articulable facts, that an occupant is or has been engaged in criminal activity. Reasonable suspicion is something less than probable cause. State v. Vanscoder (1994), 92 Ohio App.3d 853, 855, 637 N.E.2d 374, 375, 376. In this instance, the police officer testified that he stopped defendant-appellant's automobile after a license plate check which revealed that the automobile had been identified in suspected prior criminal activity. A police officer does not need to possess specific facts warranting suspicion of criminal behavior to run a license plate check on a vehicle traveling the public roadway. State v. Owens (1991), 75 Ohio App.3d 523, 599 N.E.2d 859; State v. Snyder (January 16, 1998), Wood App. No-WD-97-023, unreported. In -10- addition, it is reasonable to infer that an automobile's owner is actually driving the automobile at the time of the license plate check. State v. Epling (1995), 105 Ohio App.3d 663, 665. Therefore, under the present circumstances, the Cleveland Police acted properly by stopping defendant-appellant's automobile after a permissible license plate check. Once detained, the Cleveland Police informed defendant- appellant of his Miranda Rights and asked him if he ever let any other individuals operate his automobile. (T. 152). When defendant- appellant replied that he did not, the police placed defendant- appellant under arrest. At this point, the police impounded defendant-appellant's vehicle and conducted an appropriate inventory search during which the red jacket was discovered and subsequently tested. Michigan v. Thomas (1982), 458 U.S. 259, 172 S.Ct. 3079, 73 L.Ed. 2d 75. For the foregoing reasons, it is apparent that a motion to suppress evidence, had it been filed by defense counsel, had little or no probability of success given the fact that the Cleveland Police Department's traffic stop and arrest of defendant-appellant as well as the subsequent search of defendant-appellant's automobile were proper and done in accordance with the law in the State of Ohio. Accordingly, defendant-appellant was not denied effective assistance of counsel through defense counsel's failure to file a motion to suppress evidence. State v. Nichols (1993), 66 Ohio St.3d 431, 613 N.E.2d 225. -11- Defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE COURT ERRED WHEN, AFTER COUNSEL MADE IT KNOWN THAT THE APPELLANT LACKED THE FUNDS NECESSARY TO HIRE A DNA EXPERT AND COUNSEL FURTHER ADVISED THE COURT THAT HE LACKED THE ABILITY TO DEAL WITH SUCH EVIDENCE WITHOUT EXPERT ASSISTANCE, THE COURT FAILED TO PROVIDE SUCH ASSISTANCE BECAUSE APPELLANT HAD PRIVATE COUNSEL. Defendant-appellant argues, through his second assignment of error, that the trial court erred in failing to appoint a DNA expert to testify in his behalf. It is defendant-appellant's position that the trial court impermissibly focused upon the fact that defendant-appellant had retained counsel rather than the particularized need for a DNA expert in this case. Defendant- appellant maintains that, for purposes of retaining a DNA expert, he was in reality, in the same position as indigent defendant. It is well settled that in cases where an indigent defendant requests state-funded expert assistance, the indigent defendant has the burden of establishing the reasonableness of the request. At a minimum, the indigent defendant must present the trial court with sufficient facts upon which the court can base a decision. State v. Scott (1987), 41 Ohio App.3d 313, 315, 535 N.E.2d 379 citing Ake v. Oklahoma (1985), 470 U.S. 68, 83, 84 L.Ed 53, 105 S.Ct. 1087; State v. Ulis (July 22, 1994), Lucas App. No. L-93-247, unreported. An undeveloped assertion that expert assistance would be useful to the defense is inadequate. Caldwell v. Mississippi (1985), 470 U.S. 320, 323-324, fn 1, 86 L.Ed.2d 231 105 S.Ct. 2633. -12- In the case sub judice, defendant-appellant's counsel argued that a DNA exert was necessary for the following reasons: And in this State, in this case, they have furnished me with all kinds of discovery and I appreciate that that shows all kinds of DNA. And we would like to have the opportunity to employ our own DNA. He just doesn't have that kind of money. So we are proceeding in a handicap because there is no way that we have experts that can refute this DNA evidence and he just has to defend on whatever feeble efforts we can muster on cross-examination to try to refute the DNA. And so this particular case, Judge which is United States Supreme Court case, makes it very clear in fact, it's 47 US, 68, 47 US 68. And it states that the defendant should have an opportunity and that the court should kind of half-way level the justice field so that that defendant can have a chance to defend himself. (T. 10-11). Clearly, defendant-appellant's counsel failed to assert a specific reason for his request for expert assistance. Defense counsel simply stated that he would not be able to adequately confront the state's case in an effective manner. Without a more substantial showing that the request for a DNA expert was reasonable, this court cannot now say that the trial court erred in denying defendant-appellant's request. See Ake v. Oklahoma, supra, at 83. Accordingly, defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -13- 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 Cuyahoga County Common Pleas 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. JOSEPH J. NAHRA, P.J. AND DIANE KARPINSKI, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .