[Cite as State v. Marriott,
2021-Ohio-1404.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109339
v. :
PATRICIA L. MARRIOTT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 22, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634136-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Timothy R. Troup and Eben McNair,
Assistant Prosecuting Attorneys, for appellee.
Russell S. Bensing, for appellant.
LISA B. FORBES, J.:
Appellant, Patricia L. Marriott (“Marriott”), appeals her conviction
and sentence to three years in prison for aggravated vehicular assault and driving
under the influence. After reviewing the pertinent law and facts of the case, we
affirm.
I. Facts and Procedural History
Marriott was charged in a three-count indictment that alleged that
she had driven intoxicated on October 26, 2018, when she struck two pedestrians
while they were crossing the street. Those charges were: aggravated vehicular
assault, a felony of the third degree in violation of R.C. 2903.08(A)(1)(a); assault,
a misdemeanor of the first degree in violation of R.C. 2903.13(A); and driving under
the influence, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a).
During the discovery phase of the case, Marriott sought introduction
of a report created by Henry Lipian. Lipian is an accident reconstructionist, and his
report concluded by stating:
A normally alert driver of the age of Ms. Marriott and under the
weather and road conditions that existed at the time could not have
avoided the crash. The pedestrians moved into the path of the
Volkswagon [sic] in a short distance and over such a short time period
that even a normally alert driver was eliminated from being able to
avoid the crash. The primary cause of this crash was pedestrian actions
including the conclusion that neither was in the crosswalk at the time
of the FCP (First Contact Point), they were not reasonably discernible
and suddenly moved into the path of a vehicle that was close enough to
constitute an immediate hazard.
The state filed a motion in limine on September 10, 2020, seeking to
exclude Lipian’s testimony and the introduction of his report. In its motion, the
state argued that the report imputed contributory negligence onto the victims of the
accident and was therefore irrelevant and impermissible. The court granted the
state’s motion in limine on September 20, 2019. Marriott filed a motion to
reconsider the court’s ruling on September 23, 2019, which was denied.
On September 23, 2019, Marriott entered guilty pleas to one count of
aggravated vehicular assault and one count of driving under the influence. The
current appeal followed.
II. Law and Argument
In Marriott’s sole assignment of error, she argues that she received
ineffective assistance of counsel when her trial counsel advised her to plead guilty
instead of no contest. Marriott asserts that, as a result of pleading guilty, she
forfeited her right to appeal the trial court’s decision granting the state’s motion in
limine regarding Lipian’s testimony and report.
To succeed on a claim of ineffective assistance of counsel, a defendant
must establish that his or her attorney’s performance was deficient, and that the
defendant was prejudiced by the deficient performance. Strickland v. Washington,
466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). A court need not determine
whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. Prejudice is
demonstrated by showing “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”
Id. at 694. The object of an ineffective assistance claim is not to grade
counsel’s performance.
Id. at 697. See also State v. Bradley,
42 Ohio St.3d 136,
538
N.E.2d 3743 (1989).
Marriott’s contentions are without merit. Whether she entered a plea
of guilty or no contest, the trial court’s ruling on a motion in limine would not be
reviewable. “‘[T]he denial of a motion in limine does not preserve a claimed error
for review in the absence of a contemporaneous objection at trial.’” State v.
Hancock, 108 Ohio St.3d 57,
2006-Ohio-160,
840 N.E.2d 1032, ¶ 59, quoting State
v. Hill,
75 Ohio St.3d 195, 203,
661 N.E.2d 1068 (1996). “[M]otions in limine do
not preserve issues for appeal because they are tentative, preliminary rulings about
an anticipated evidentiary issue and are subject to change during trial when the
issue is presented in its full context.” Bohl v. Aluminum Co. of Am., Inc., 8th Dist.
Cuyahoga No. 108584,
2020-Ohio-2824, ¶ 39, citing State v. Grubb,
28 Ohio St.3d
199, 203,
503 N.E.2d 142 (1986). Thus, a court’s ruling on a motion in limine is
only reviewable once the proponent of the evidence has attempted to present it at
trial. Orbit Elecs., Inc. v. Helm Instrument Co.,
167 Ohio App.3d 301, 2006-Ohio-
2317,
855 N.E.2d 91, ¶ 17 (8th Dist.). In other words, a ruling on a motion in limine
is ordinarily not a final appealable order. Liebe v. Admin., 8th Dist. Cuyahoga
No. 100230,
2014-Ohio-1834, ¶ 9.
Marriott claims on appeal that, had she been advised to enter a plea
of no contest instead of guilty, this court would be able to review the trial court’s
ruling on the state’s motion in limine; therefore, she argues she was prejudiced by
her lawyer’s ineffective advice. We disagree.
Whether Marriott entered a plea of guilty or no contest would have
no bearing on whether this court could review the trial court’s interlocutory order
granting the state’s motion in limine. Marriott did not go to trial. As a result, she
never presented at trial the evidence that had been the subject of the state’s motion
in limine. The issue of the admissibility of Lipian’s testimony and report was not
preserved for appeal.
Accordingly, Marriott cannot demonstrate prejudice and her sole
assignment of error is without merit.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
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.
LISA B. FORBES, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
