State v. Hood

[Cite as State v. Hood, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,
                                                          CASE NO. 9-24-08
         PLAINTIFF-APPELLEE,

    v.

ORTAVIOUS L. HOOD, JR.,                                   OPINION

         DEFENDANT-APPELLANT.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2023 CR 0031

                                      Judgment Affirmed

                           Date of Decision: February 10, 2025



APPEARANCES:

         April F. Campbell for Appellant

         Allison M. Kesler for Appellee
Case No. 9-24-08




ZIMMERMAN, J.

       {¶1} Defendant-appellant, Ortavious L. Hood, Jr. (“Hood”), appeals the

February 23, 2024 judgment entry of sentence the Marion County Court of Common

Pleas. For the reasons that follow, we affirm.

       {¶2} This case stems from a January 15, 2023 traffic stop of a vehicle

operated by Hood for a “significantly cracked” windshield by Captain Ken

Rittenour (“Captain Rittenour”) of the Marion County Sheriff’s Office. (July 12,

2023 Tr. at 8). As a result of the traffic stop, Hood was indicted on January 18,

2023 by the Marion County Grand Jury for six Counts: Count One of trafficking in

cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(f), a first-degree felony; Count

Two of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(e), a first-

degree felony; Count Three of having weapons while under disability in violation

of R.C. 2923.13(A)(2), (B), a third-degree felony; Count Four of having weapons

while under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony;

Count Five of improperly handling firearms in a motor vehicle in violation of R.C.

2923.16(B), (I), a fourth-degree felony; and Count Six of carrying a concealed

weapon in violation of R.C. 2923.12(A)(2), (F)(1), a first-degree misdemeanor. The

indictment included firearm specifications under R.C. 2941.141(A) as to Counts

One and Two and forfeiture specifications as to all of the counts. Hood appeared

for arraignment on January 23, 2023 and pleaded not guilty to the indictment.

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       {¶3} On June 6, 2023, Hood filed a motion to suppress evidence, arguing that

Captain Rittenour did not have reasonable suspicion or probable cause to stop him.

Hood further requested that the trial court suppress the laboratory report generated

under R.C. 2925.51 because the notary public’s commission had expired.

Moreover, in that same motion, Hood requested the transcripts of the State’s

presentation of its case against Hood before the Marion County Grand Jury, alleging

that the indictment was deficient because the weight of the cocaine was not

determined by lab analysis until after the indictment. The State filed a memorandum

in opposition to Hood’s motion on June 20, 2023. After a hearing on July 12, 2023,

the trial court on July 14, 2023 granted Hood’s suppression motion in part, denied

it in part, and denied Hood’s request to inspect the grand jury transcripts.

Consequently, because the trial court determined (based on the State’s concession)

that the laboratory report generated under R.C. 2925.51 was notarized with an

expired notary, the trial court concluded that the State should call the analyst to

testify at any trial in this case.

       {¶4} On January 23-24, 2024, the case proceeded to a jury trial as to Counts

One (along with the firearm specification), Two (along with the firearm

specification), Five, and Six and to a bench trial as to the remaining counts and

specifications. On January 24, 2024, the jury found Hood guilty as to Counts One,

Two, Five, and Six, and the firearm specifications as to Counts One and Two. The

trial court found Hood guilty of Counts Three and Four and the forfeiture

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Case No. 9-24-08


specifications as to Counts Two, Three, Four, Five, and Six, but not guilty of the

forfeiture specifications as to Count One.

       {¶5} On February 23, 2024, the trial court sentenced Hood to a minimum

term of 10 years in prison to a maximum term of 15 years in prison as to Count Two,

36 months in prison as to Count Four, 12 months in prison as to Count Five, 90 days

in jail as to Count Six, and 1 year in prison as to the firearm specification

accompanying Count Two. The trial court ordered Hood to serve the prison terms

imposed as to Counts Two, Four, Five, and the firearm specification consecutively.

Further, the trial court ordered Hood to serve the term imposed as to Count Six

concurrently to the consecutive terms imposed as to Counts Two, Four, Five, and

the firearm specification for an aggregate sentence of a minimum term of 15 years

to a maximum term of 20 years in prison. Moreover, the trial court merged Counts

One and Two and Three and Four, respectively, for purposes of sentencing. The

trial court also ordered the contraband identified in the forfeiture specifications

forfeited.

       {¶6} On March 15, 2024, Hood filed his notice of appeal. He raises four

assignment of error for our review.

                            First Assignment of Error

       The evidence against Hood should have been suppressed because
       the officers who stopped Hood did not have reasonable suspicion
       or probable cause to stop him.



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       {¶7} In his first assignment of error, Hood argues that the trial court erred by

denying his motion to suppress evidence. Specifically, Hood contends that Captain

Rittenour did not have probable cause or reasonable suspicion to stop him because

the windshield crack was on the passenger’s side, which did not render the operation

of his vehicle unsafe.

                                  Standard of Review

       {¶8} A review of the denial of a motion to suppress involves mixed questions

of law and fact. State v. Burnside, 

, ¶ 8. At a suppression hearing,

the trial court assumes the role of trier of fact and, as such, is in the best position to

evaluate the evidence and the credibility of witnesses. 

 See also State v. Carter,

 (1995). When reviewing a ruling on a motion to suppress,

“an appellate court must accept the trial court’s findings of fact if they are supported

by competent, credible evidence.” 

, citing State v. Fanning, 

 (1982). With respect to the trial court’s conclusions of law, however, our

standard of review is de novo, and we must independently determine whether the

facts satisfy the applicable legal standard. 

 citing State v. McNamara, 

 (4th Dist. 1997).

                                        Analysis

       {¶9} “The Fourth Amendment to the United States Constitution and Article

I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and

seizures, and any evidence that is obtained during an unlawful search or seizure will

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Case No. 9-24-08


be excluded from being used against the defendant.” State v. Tyson, 2015-Ohio-

3530, ¶ 9 (3d Dist.). “Generally, any evidence obtained in violation of the Fourth

Amendment, as well as any evidence seized subsequent to such violation, must be

suppressed as ‘fruit of the poisonous tree.’” State v. Fielding, 

 (10th Dist.), quoting Wong Sun v. United States, 

 (1963). See

also State v. Jenkins, 

 (3d Dist.) (The Fourth Amendment does

not explicitly provide “that violations of its provisions against unlawful searches

and seizures will result in the suppression of evidence obtained as a result of such

violation, but the United States Supreme Court has held that the exclusion of

evidence is an essential part of the Fourth Amendment.”).

       {¶10} “‘A traffic stop constitutes a seizure and implicates the protections of

the Fourth Amendment’ but ‘“is constitutionally valid if an officer has a reasonable

and articulable suspicion that a motorist has committed, is committing, or is about

to commit a crime.”’” Tyson at ¶ 10, quoting State v. Dillehay, 

 (3d Dist.) and State v. Aldridge, 

 (3d Dist.), quoting State

v. Mays, 

, ¶ 7.        “The Supreme Court of Ohio has defined

‘reasonable articulable suspicion’ as ‘specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant the intrusion

[upon an individual’s freedom of movement].’” State v. Shaffer, 

 (3d Dist.), quoting State v. Bobo, 

 (1988). “In

determining whether reasonable articulable suspicion exists, a reviewing court must

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Case No. 9-24-08


look to the totality of the circumstances.” State v. Steinbrunner, 

 (3d Dist.). “A police officer’s testimony alone is sufficient to establish

reasonable articulable suspicion for a stop.” State v. McClellan, 

 (3d Dist.).

       {¶11} “In addition to a reasonable and articulable suspicion of criminal

activity, ‘[p]robable cause is certainly a complete justification for a traffic stop,’ but

it is not required to justify a traffic stop.” Tyson at ¶ 11, quoting 

.

“‘Probable cause’ is a stricter standard than and subsumes ‘reasonable and

articulable suspicion.’” 

 quoting 

. Accordingly, “an officer who

witnesses a traffic violation possesses probable cause, and a reasonable articulable

suspicion, to conduct a traffic stop.” State v. Haas, 

 (3d Dist.).

       {¶12} In this case, the trial court denied Hood’s motion to suppress evidence

after concluding that Captain Rittenour had “reasonable suspicion” to stop Hood

based on damage to the windshield which rendered operation of the vehicle unsafe

in violation of R.C. 4513.02. (Doc No. 52). In reaching its conclusion, the trial

court determined that the damage to the windshield constituted a violation of R.C.

4513.02 since it was substantial and impaired the driver’s vision. Specifically, the

trial court reasoned that

       [t]he damage is more than a single crack. Rather it has a large impact
       point in the passenger side of the front windshield about the height of
       the front seat’s headrests, which then extends into a spiral pattern
       extending over the majority of the passenger half of the windshield
       and extending from the top to the bottom of the windshield. In total

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Case No. 9-24-08


         there are more than twenty cracks extending from the impact point to
         various edges of the windshield.

(Id.).

         {¶13} Decisively, we conclude that the trial court did not err by denying

Hood’s motion to suppress evidence because Captain Rittenour had reasonable

suspicion to stop Hood based the damage that he observed to Hood’s windshield in

violation of R.C. 4513.02. Imperatively, there is competent, credible evidence in

the record supporting the trial court’s determination that the damage to Hood’s

windshield constituted a violation of R.C. 4513.02.

         {¶14} R.C. 4513.02, provides in its relevant part, that “[n]o person shall drive

. . . on any highway any vehicle . . . which is in such unsafe condition as to endanger

any person.” R.C. 4513.02(A). “Many Ohio courts have concluded that a cracked

windshield provides reasonable suspicion to justify a traffic stop if the crack renders

the vehicle ‘unsafe,’ pursuant to R.C. 4513.02(A).” State v. Carey, 

 (9th Dist.) (collecting cases). “‘Some courts have stated that the combination

of [R.C. 4513.02(A) and Ohio Adm.Code 4501:2-1-11] make it a violation to

operate a vehicle with any cracks in the windshield because administrative agencies’

rules have the full force and effect of law when issued pursuant to statutory

authority.’”    

 quoting State v. Latham, 

 (2d Dist.).

“Generally, courts have . . . found a windshield crack to establish reasonable




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suspicion that R.C. 4513.02(A) has been violated when the crack is substantial or

impairs the driver’s vision.” 

       {¶15} At the suppression hearing, Captain Rittenour testified that, in his

“opinion [it] wasn’t just a little cracked, it was significantly cracked.” (July 12,

2023 Tr. at 8). Compare 

 (determining that “Deputy Lesnasky’s

testimony was sufficient to demonstrate the existence of a substantial or significant

crack in the truck’s windshield”). He testified that the windshield was not in safe

working condition because “it would obstruct [Hood’s] view of making the right-

hand turns.” (July 12, 2023 Tr. at 16). State’s Exhibits 1 through 4 depict the

condition of the windshield as it appeared on the day of the traffic stop.

Consequently, there is competent, credible evidence supporting the trial court’s

determination that Captain Rittenour had reasonable suspicion to stop Hood based

on a violation of R.C. 4513.02. Accordingly, the trial court did not err by denying

Hood’s motion to suppress evidence.

       {¶16} Hood’s first assignment of error is overruled.

                           Second Assignment of Error

       Because the grand jury indicted Hood with trafficking and
       possession of cocaine without evidence by way of lab report that
       the substance was cocaine, nor had evidence as to the amount of
       it, Hood’s indictment was defective, and Hood’s Ohio and Federal
       Constitutional rights, as well as the Ohio Rules of Criminal
       Procedure, were violated.




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       {¶17} In his second assignment of error, Hood argues that Counts One and

Two of the indictment are defective since “the State did not have evidence by way

of a lab report, that the substance suspected to be cocaine, was actually cocaine” or

“have evidence of the amount.” (Appellant’s Brief at 8). Hood asserts that the

evidence presented before the grand jury was insufficient to support its probable

cause finding that he trafficked and possessed cocaine in an amount exceeding 27

grams but less than 100 grams.

                                 Standard of Review

       {¶18} Generally, this court reviews “a trial court’s decision on a motion to

dismiss an indictment for abuse of discretion.” State v. Hudson, 

. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or

unconscionable. State v. Adams, 

 (1980).

       {¶19} However, because Hood did not object or move to dismiss the

indictment, he has waived all but plain error on appeal. Accord State v. Leonard,

 (1st Dist.); State v. Buford, 

 (6th Dist.)

(noting that “a plain-error analysis applies to challenges of defective indictments

first raised on appeal”). Under “‘Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.”’” State v. Harrison, 

, ¶ 69 (3d Dist.), quoting State v.

Walburg, 

, ¶ 47 (10th Dist.). “We recognize plain error with the

utmost caution, under exceptional circumstances, and only to prevent a manifest

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Case No. 9-24-08


miscarriage of justice.” 

 “‘For plain error to apply, the trial court must have

deviated from a legal rule, the error must have been an obvious defect in the

proceeding, and the error must have affected a substantial right.’” 

 quoting State

v. Vielma, 

 (3d Dist.). “‘Under the plain error standard, the

appellant must demonstrate that the outcome of his trial would clearly have been

different but for the trial court’s errors.’” (Emphasis added.) 

 quoting 

.

                                        Analysis

        {¶20} “Both Section 10, Article I of the Ohio Constitution and the Fifth

Amendment to the Unites States Constitution provide that prosecution for capital

offenses or felonies shall be instituted by grand jury indictments.” State v. Rodano,

 (8th Dist.). “The grand jury’s responsibilities include both

‘the determination whether there is probable cause to believe a crime has been

committed and the protection of citizens against unfounded criminal prosecutions.’”

 quoting United States v. Calandra, 

 (1974). “The grand jury

sits not to determine guilt or innocence, but to assess whether there is adequate basis

for bringing a criminal charge.”         

 “‘An indictment returned by a legally

constituted and unbiased grand jury . . . if valid on its face, is enough to call for trial

of the charge on the merits.’” 

 quoting Costello v. United States, 

 (1956).



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          {¶21} “It is well-established that the purpose of an indictment is to give the

accused adequate notice of the crime charged.” State v. Clements, 

,

¶ 8 (12th Dist.). “An indictment is sufficient if it contains the elements of the offense

charged, fairly informs the defendant of the charge, and enables the defendant to

plead an acquittal or conviction in bar of future prosecutions for the same offense.”

 See also Crim.R. 7(B).

          {¶22} In this case, Hood does not allege that the indictment is deficient on

its face. Instead, Hood contends that the evidence presented to the grand jury was

insufficient for it to find that there was probable cause that he trafficked or possessed

cocaine in an amount exceeding 27 grams but less than 100 grams. However, a trial

“court’s supervisory power to review grand jury proceedings is limited to prevent

fundamental unfairness.” 

, citing State v. Hill, 

, ¶

22 (8th Dist.) (asserting that “a trial court may invoke its supervisory power to

review the grand jury proceedings, but only to prevent ‘fundamental unfairness’”),

quoting Bank of Nova Scotia v. United States, 

 (1988). “‘An

error is “fundamental” when “the structural protections of the grand jury have been

so compromised as to render the proceedings fundamentally unfair, allowing the

presumption of prejudice.”’” 

 quoting 

, quoting Bank of Nova Scotia

at 257.

          {¶23} “[T]he presentation of improper evidence to the grand jury is not a

‘fundamental error.’” 

. Because “‘the validity of an indictment is not

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affected by the character of the evidence considered’ . . . an indictment, fair upon

its face, and returned by a properly constituted grand jury, conclusively determines

the existence of probable cause to believe the defendant perpetrated the offense

alleged therein.” 

 quoting Calandra, 

. Importantly, the United

States Supreme Court has determined that “defendants are not constitutionally

entitled to a judicial redetermination of the grand jury’s finding that probable cause

justifies criminal prosecution.” Id. at ¶ 26, citing Kaley v. United States, 

 (2014), syllabus. See also State v. Wilks, 

, ¶ 37 (asserting that

“a facially valid indictment is not subject to challenge based on grounds of

inadequate or incompetent evidence”). Relevantly,

       “[i]f indictments were to be held open to challenge on the ground that
       there was inadequate or incompetent evidence before the grand jury,
       the resulting delay would be great indeed. The result of such a rule
       would be that before trial on the merits a defendant could always insist
       on a kind of preliminary trial to determine the competency and
       adequacy of the evidence before the grand jury. This is not required
       by the Fifth Amendment.”

, quoting Costello, 

.

       {¶24} Because Hood’s argument regarding the grand jury proceedings does

not allege a fundamental error, his argument is not subject to judicial review.

Consequently, we conclude that there is no reversible error, plain or otherwise,

regarding the grand jury proceedings. See 

 (concluding that “[t]here

is no reversible error, plain or otherwise, regarding the grand jury proceeding”

“[a]lthough the grand jury did not consider her second report (issued long after the

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Case No. 9-24-08


grand jury proceeding) [because] the prosecution’s evidence is tested at trial, not in

the grand jury proceeding”).

       {¶25} Hood’s second assignment of error is overruled.

                            Third Assignment of Error

       The trial court erred in allowing the forensic analyst to give
       substitute testimony from the Captain who notarized the
       laboratory report, in violation of Hood’s confrontation right. It
       also therefore reversibly erred in admitting the lab report into
       evidence because it did not comply with R.C. 2925.51 and was
       prejudicial hearsay.

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

by admitting impermissible hearsay evidence and that the admission of that hearsay

evidence violated his rights under the Confrontation Clause of the Sixth Amendment

to the United States Constitution. Specifically, Hood challenges the admission of

State’s Exhibit 17 based on “out of court statements from the captain who did not

testify, to demonstrate that his commission had not expired” even though “the trial

court had previously ruled that the notarization was improper, [and] the State did

not seek to amend the report.” (Appellant’s Brief at 10).

                                Standard of Review

       {¶27} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway, 

, ¶ 62. As we

previously stated, an abuse of discretion implies that the trial court acted


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Case No. 9-24-08


unreasonably, arbitrarily, or unconscionably. Adams, 

.

“However, we review de novo evidentiary rulings that implicate the Confrontation

Clause.”    State v. McKelton, 

.            “De novo review is

independent, without deference to the lower court’s decision.” State v. Hudson,

 (3d Dist.).

                                       Analysis

       {¶28} In this case, Hood contends that the trial court abused its discretion by

admitting State’s Exhibit 17 based on the testimony of Anthony Tambasco

(“Tambasco”), a forensic scientist and the director of the Mansfield Division of

Police Forensic Science Laboratory, who analyzed the cocaine in this case. Hood

disputes the trial court’s reliance on Tambasco’s testimony that Captain Chad

Brubaker’s (“Captain Brubaker”) notarization of Tambasco’s statement stating his

qualifications and the scientific validity of the testing procedures (in State’s Exhibit

17) was not expired.

       {¶29} We will begin by addressing whether the admission of State’s Exhibit

17 based on Captain Brubaker’s hearsay statement was proper under the rules of

evidence. Then, we will consider whether the admission of Captain Brubaker’s out-

of-court statement violated Hood’s Sixth Amendment rights.

                                       Hearsay

       {¶30} Hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

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Case No. 9-24-08


truth of the matter asserted.” Evid.R. 801(C). “Hearsay is inadmissible under

Evid.R. 802, unless a particular statement fails to meet the two-part definition in

Evid.R. 801(C), or fully satisfies the conditions for nonhearsay prior statements

under Evid.R. 801(D)(1) or (2), or falls within one of recognized exceptions under

Evid.R. 803 or 804.” State v. Richcreek, 

, ¶ 22 (6th Dist.). “[A]

statement is, by definition, not hearsay when it is offered for a purpose other than to

prove the truth of the matter asserted.” State v. Armour, 

 (3d

Dist.).

          {¶31} “R.C. 2925.51(A) creates an exception to the hearsay rules.” State v.

Hudson, 

, *2 (8th Dist. Mar. 28, 2002). Under R.C. 2925.51,

          a laboratory report of a controlled substance performed by a police
          laboratory “stating that the substance which is the basis of the alleged
          offense has been weighed and analyzed and stating the findings as to
          the content, weight, and identity of the substance and that it contains
          any amount of a controlled substance and the number and description
          of unit dosages, is prima-facie evidence of the content, identity, and
          weight or the existence and number of unit dosages of the substance.”

State v. Garrett, 

 (5th Dist.), quoting R.C. 2925.51(A). The

statute requires that the “report shall be signed and notarized and the signer must

state his or her education and attest that scientifically accepted tests were performed

with due caution and that the evidence was handled by accepted procedures.” 

citing R.C. 2925.51(A). “The report must be served to the attorney representing the

accused prior to any proceeding in which the report may be used.” Hudson at *2,

citing R.C. 2925.51(B). “The only time the report is not considered prima facie

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Case No. 9-24-08


evidence of the contents, identity and weight of the substance tested is when the

accused, within seven days of receiving the report, demands the testimony of the

person signing the report.” Id., citing R.C. 2925.51(C).

       {¶32} Contrary to Hood’s argument on appeal, State’s Exhibit 17 was not

admitted in violation of the hearsay rules. Decisively, the trial court correctly

admitted the report based on Tambasco’s testimony, which established the report’s

authenticity. See State v. Schilling, 

 (5th Dist. 1989); State

v. Rodriquez, 

 (6th Dist. 1990). Importantly, in its decision

on Hood’s suppression motion, the trial court instructed the State to call the analyst

(not the notary) to testify at trial.

       {¶33} Consequently, the validity of Captain Brubaker’s notary had no

bearing on the admissibility of the report. See Hudson at *3. Even so, Tambasco

clarified at trial that Captain Brubaker’s notary (contrary to the stated expiration)

was not expired at the time he notarized Tambasco’s report.

                                  Confrontation Clause

       {¶34} Having determined that the trial court properly admitted State’s

Exhibit 17 under the hearsay rules, we will turn to Hood’s argument that it should

have been excluded under the Confrontation Clause. The Confrontation Clause to

the Sixth Amendment of the United States Constitution, made applicable to the

states by the Fourteenth Amendment, provides that “‘[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses against him

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Case No. 9-24-08


. . . .’” Crawford v. Washington, 

 (2004), quoting the Confrontation

Clause.

       The United States Supreme Court has interpreted [the Sixth
       Amendment right to confrontation] to mean that admission of an outof-court statement of a witness who does not appear at trial is
       prohibited by the Confrontation Clause if the statement is testimonial
       unless the witness is unavailable and the defendant has had a prior
       opportunity to cross-examine the witness.

State v. Maxwell, 

.

       {¶35} Consequently,      “[o]nly    testimonial   hearsay    implicates    the

Confrontation Clause.” McKelton, 

. “Therefore, even if

a statement falls under a hearsay exception it can be excluded as testimonial because

such statements violate the Confrontation Clause.” State v. Hairston, 2016-Ohio-

8495, ¶ 27 (10th Dist.). Conversely, nontestimonial statements may be admissible

under a hearsay exception. 

 Likewise, “[t]here is also no dispute that the

Confrontation Clause ‘does not bar the use of testimonial statements for purposes

other than establishing the truth of the matter asserted.’” State v. Ricks, 2013-Ohio-

3712, ¶ 18, quoting 

, and citing Williams v. Illinois, 

, 57-

58 (2012).

       {¶36} For the same reasons that we determined that the admission of State’s

Exhibit 17 did not violate the hearsay rules, we conclude that Hood’s confrontation

rights were not violated by its admission. Critically, the validity of a notary’s

commission, while important for the legal efficacy of a document, is not a statement


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Case No. 9-24-08


made by a witness about a past event. Instead, it is a procedural or administrative

fact. See Read v. Toledo Loan Co., 

 (1903), paragraph two of the

syllabus (holding that “the act of the notary public or other officer taking and

certifying the same is a ministerial, and not a judicial, act”). Even so, based on the

facts presented by this case, Tambasco testified to the validity of Captain Brubaker’s

notary commission.

       {¶37} More importantly, Hood was afforded the opportunity to confront

Tambasco—the analyst and author of the report regarding the results of his analysis,

including his education, methodology, and the handling of the evidence. That is,

Hood was able to confront Tamabsco about key facts of the State’s case regarding

the cocaine.

       {¶38} For these reasons, Hood’s third assignment of error is overruled.

                           Fourth Assignment of Error

       Hood’s convictions should be reversed because his counsel was
       prejudicially ineffective for failing to object to the analyst’s
       testimony under the confrontation clause, hearsay rules, and R.C.
       2925.21.

       {¶39} In his fourth assignment of error, Hood argues his trial counsel was

ineffective for failing to object to Tambasco’s testimony regarding Captain

Brubaker’s notarization of his lab report.




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                                 Standard of Review

       {¶40} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 

 (2001), citing Strickland v. Washington, 

 (1984). In order to show counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment. 

. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 

 (1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Carter, 

 (1995). Rather, the

errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley, 

 (1989),

quoting State v. Lytle, 

 (1976), vacated in part on other

grounds, 

 (1978).

       {¶41} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 

 (3d Dist.), quoting 

,

citing 

. “‘A reasonable probability is a probability sufficient to

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Case No. 9-24-08


undermine confidence in the outcome.’” 

 quoting Bradley at 142 and citing

.

                                      Analysis

       {¶42} On appeal, Hood argues that his trial counsel was ineffective for

failing “to object to test testimony of Tambasco, who substitute testified for a

captain of the Mansfield police department who improperly notarized his lab

report.” (Appellant’s Brief at 12). However, based on our resolution of Hood’s

third assignment of error, Hood’s argument that his trial counsel was ineffective for

failing to object to Tambasco’s testimony is without merit.

       {¶43} Hood’s fourth assignment of error is overruled.

       {¶44} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WALDICK, P.J. and MILLER, J., concur.

/hls




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