[Cite as State v. Perez,
2025-Ohio-509.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2024-P-0015
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
TIMOTHY J. PEREZ,
Trial Court No. 2023 CR 00521
Defendant-Appellant.
OPINION
Decided: February 18, 2025
Judgment: Affirmed
Connie J. Lewandowski, Portage County Prosecutor, Pamela J. Holder and Kristina K.
Reilly, Assistant Prosecutors, 241 South Chestnut Street, Ravenna, OH 44266 (For
Plaintiff-Appellee).
Eric J. Cherry, N.P. Weiss Law, 3091 Mayfield Road, Suite 320, Cleveland Heights, OH
44118 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Timothy Perez, appeals the judgment of conviction from the
Portage County Court of Common Pleas after a jury trial. Appellant was found guilty of
three counts of Rape, first-degree felonies in violation of R.C. 2907.02 and one count of
Gross Sexual Imposition, a third-degree felony in violation of R.C. 2907.05. Appellant has
raised four assignments of error arguing that his Fifth Amendment right against self-
incrimination was violated; that his confession was involuntary; that the trial court erred
by failing to declare a mistrial after the State prejudiced the jury; and that trial counsel
rendered ineffective assistance of counsel.
{¶2} Having reviewed the record and the applicable caselaw, we find Appellant’s
assignments of error to be without merit. First, the objective circumstances of Appellant’s
interview with Detective Svab demonstrate that it was not a custodial interrogation and
that his confession was voluntary. Second, none of the State’s conduct rose to the level
that Appellant did not receive a fair trial, and the trial court did not err in failing to sua
sponte order a mistrial based on the State’s comments. Finally, trial counsel’s failure to
file a motion to suppress or call certain witnesses did not fall below an objective standard
of reasonable representation, and had counsel done so, there is not a reasonable
probability the outcome of the trial would have been different.
{¶3} Therefore, the judgment of the Portage County Court of Common Pleas is
affirmed.
Substantive and Procedural History
{¶4} On May 11, 2023, Appellant was charged through a secret indictment with
three counts of Rape, first-degree felonies in violation of R.C. 2907.02; three counts of
Sexual Battery, second-degree felonies in violation of R.C. 2907.03; and one count of
Gross Sexual Imposition, a third-degree felony in violation of R.C. 2907.05. Appellant pled
not guilty to the charges.
{¶5} On August 21, 2023, the State filed a supplemental indictment charging
Appellant with three additional counts of Gross Sexual Imposition in violation of R.C.
2907.05. Appellant pled not guilty to these additional charges.
{¶6} Next, on October 17, 2023, the State filed an amended indictment that
amended the charges to three counts of Rape and one count of Gross Sexual Imposition.
{¶7} On January 9, 2024, a jury trial began.
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{¶8} At the trial, Savanah Watson testified that she is the mother of “MK” (DOB
10-20-2019). She said that she had known Appellant since 2017, but the two began a
relationship in 2021, and he moved into her residence shortly thereafter. Watson said that
Appellant had lost his apartment and needed to move in with her. She said that he did
not work or assist with the rent. She said he was “able bodied” and “just didn’t want to”
work. Watson said that she worked during the day and Appellant watched MK. Appellant
was the father of Watson’s youngest child, born in 2022, but was not the biological father
of MK.
{¶9} Watson said that while she was pregnant, she noticed that MK began
throwing fits and refused to stay with Appellant and cried to the point of throwing up
whenever she was around him. Watson said that MK would hide behind her when
Appellant tried to be with her. Because of this, she began sending MK to Watson’s
grandmother for care. Watson also noted other unusual behaviors from MK, such as
saying that she had seen a man in dark clothes in her bedroom. After her youngest child
was born, Watson also noticed that MK began to touch the child’s genitals.
{¶10} Watson and Appellant moved to a new residence in November 2022.
Watson said that MK was scared to sleep alone and referenced the man in black clothes
more often. MK also began obscuring the eyes of her dolls and writing sad faces on the
walls in what Watson described as doing “anything to show that she’s not okay.” MK also
became curious about the family dog’s genitals and began trying to touch them.
{¶11} Watson said that she confronted Appellant about potential abuse because
of MK’s actions. Appellant denied any wrongdoing. Watson moved out of her apartment
in January 2023 and broke off contact with Appellant. She said that MK’s anxiety abated
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after this. At this time, MK also pointed on a baby doll to indicate that she had been
touched on her genitals. Watson contacted Child Protective Services (CPS) and the
police to report Appellant’s suspected conduct.
{¶12} The State introduced several photographs of MK at the age of three, during
the timeframe of the alleged criminal conduct. Appellant’s trial counsel stipulated to the
pictures being published to the jury and did not object to their admission.
{¶13} Jessica Hoskin, a nurse interviewer with the Children’s Advocacy Center,
testified about the evaluation she performed of MK in February 2023. Hoskin said that
MK’s young age made the forensic interview difficult. She said that MK did not disclose
any sexual abuse during the interview and denied that anyone had every touched her
“private parts.” After the interview, Hoskin conducted a non-invasive physical examination
and did not find any apparent signs of abuse. Hoskin said that the lack of specific
disclosure, denial of disclosure, and lack of physical signs of abuse is not unusual and
does not exclude the possibility of abuse, particularly with very young children.
{¶14} Marcia Watson, MK’s great-grandmother, testified as to her observations
about Appellant and MK. She said that MK was initially very fond of Appellant, but that
after several months she noticed a change in behavior. She said that MK began to hide
from Appellant and throw fits when Appellant would pick MK up from her house.
{¶15} Dr. Paul McPherson, Division Director for the Children at Risk Evaluation
Clinic with Akron Children’s Hospital, testified. Dr. McPherson said that according to at
least one study, 75% of children delay reporting their sexual abuse for over a year after it
happened. He also said that 90-95% of sexual abuse cases result in a normal physical
exam with no physical manifestations of abuse. This can be because the abuse did not
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result in injury or that the injury healed by the time of an examination. Dr. McPherson said
that, despite the lack of MK disclosing abuse and the lack of physical evidence of abuse,
he believed that MK’s reported behavioral changes were consistent with sexual abuse.
{¶16} Detective Dustin Svab, of the Ravenna Police Department, testified about
his investigation arising from the allegations against Appellant. Based on the reported
conduct and the medical evaluation report, Detective Svab contacted Appellant to discuss
the allegations.
{¶17} Appellant scheduled the interview and voluntarily appeared at the Ravenna
Police Department on May 5, 2023. The State played a 38-minute audio recording of that
interview for the jury. The interview took place in the administrative area of the department
which is used as a conference room or lunchroom. Although the doors to the room were
shut, Detective Svab told Appellant that the doors did not lock, and Appellant was seated
closest to the door. He said that Appellant could leave at any time and did not have to
talk to him. Detective Svab said that regardless of what Appellant said, Appellant would
walk out of there today but offered that “where we go from here, I don’t know.”
{¶18} Appellant said that he gets Social Security Disability because he has bipolar
disorder and oppositional defiance disorder and has difficulty working with people and
taking direction. Detective Svab testified that Appellant otherwise seemed able-bodied.
{¶19} During the interview Detective Svab said that they were there to discuss the
allegations surrounding MK. He explained that he had conducted other interviews like this
one and said that there are consequences for the choices people make. He said that
whenever something “however slight” may have happened, the police want to investigate.
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{¶20} Detective Svab said that he believed there were a couple of incidents that
were “minor in nature.” He said that he believed that Appellant had touched MK. Appellant
acknowledged that he would change MK’s diapers and had touched her, but he said he
did not do so in a sexual manner. Detective Svab said that he was not talking about those
kinds of contacts. He said maybe a situation started out as a diaper change but that due
to curiosity turned into something more. Appellant denied this characterization. Detective
Svab said no one was accusing Appellant of having sex with MK but said that he believed
there was inappropriate touching. He again asked Appellant if curiosity got the best of
him.
{¶21} Appellant said that “mentally, I might have accidentally did something. Not
to hurt her or anything else, but like you said, curiosity might have got the best of me one
time.” Detective Svab asked for additional information and stressed that he had a medical
report with information that Appellant’s story needed to mesh with.
{¶22} Appellant said that “curiosity killed the cat” and, after back and forth with
Detective Svab, admitted that he touched MK’s genitals with his fingers. Appellant also
agreed with Detective Svab’s characterization that he penetrated her genitals “ever so
slightly.” He said that this happened, at most, three times. Appellant also agreed with
Detective Svab’s characterization that he had coached or encouraged MK to place her
hand on his genitals over his clothing.
{¶23} During Detective Svab’s testimony, the State asked him to identify MK from
her picture in State’s Exhibit 1. Appellant objected to showing MK’s picture again, but the
trial court overruled the objection. Detective Svab answered a brief question about MK’s
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date of birth and said the picture reflected her age and development at the time of the
alleged offense.
{¶24} The State rested and submitted its exhibits. Appellant’s trial counsel did not
object to any of the pictures of MK but did observe that the pictures “were kind of
duplicate. We’ve got so many photos. . . . But I don’t seen any harm in it.” Appellant made
a Crim.R. 29 motion, which the trial court denied.
{¶25} The jury found Appellant guilty on all counts with the additional finding that
the victim was under 10 at the time of the offense.
{¶26} On March 1, 2024, the trial court sentenced Appellant to three terms of life
in prison with eligibility for parole after 15 years on each of the Rape counts to be served
concurrently and five years in prison for the Gross Sexual Imposition count to run
concurrently to the other counts.
{¶27} Appellant timely appealed raising four assignments of error.
Assignments of Error and Analysis
{¶28} Appellant’s first assignment of error states: “The Court failed to protect
Appellant’s 5th Amendment [sic] against self-incrimination.”
{¶29} Appellants second assignment of error states: “Appellant’s confession was
involuntary as it was obtained by way of psychological manipulation.”
{¶30} In his first and second assignments of error, Appellant suggests that law
enforcement officers have learned how to comply with the tenants of the Fifth
Amendment’s right against self-incrimination and thus have learned how to tactically
avoid those requirements. He believes that despite the hallmarks of an appropriate non-
custodial interrogation, the interrogating officer’s continued dissatisfaction with his
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statements and encouragement to confess was the proverbial “lock on the door”
rendering his interrogation custodial. He states that his “voluntary” interview with
Detective Svab was not truly voluntary and that his apparent options during the interview
were either to leave the interview without a confession, ensuring that he would appear
guilty, or to confess. This Hobson’s choice left him with no option but to confess and made
the confession involuntary. Appellant seeks for this Court to expand the Miranda warnings
rule to apply in situations where law enforcement has identified a suspect regardless of
whether an interrogation is custodial or non-custodial.
{¶31} Because Appellant did not raise this issue below, “under the circumstances
of this case, appellant has forfeited all but plain error on review.” State v. Carnes, 2015-
Ohio-4429, ¶ 8 (11th Dist.). “Crim.R. 52(B) affords appellate courts discretion to correct
‘[p]lain errors or defects affecting substantial rights’ notwithstanding the accused’s failure
to meet his obligation to bring those errors to the attention of the trial court.” State v.
Rogers, 2015-Ohio-2459, ¶ 22. The appellant bears the burden of demonstrating plain
error by proving that the outcome would have been different absent the plain error. State
v. Payne,
2007-Ohio-4642, ¶ 17. The plain error must be a deviation from a legal rule and
an obvious defect in the proceedings.
Rogers at ¶ 22.
{¶32} Further, even when the error is obvious, “it must have affected substantial
rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”
Id., quoting State v. Barnes,
94 Ohio St.3d 21, 27 (2002). This is the same deferential
standard applied for “reviewing ineffective assistance of counsel claims.”
Id. Indeed,
“even if an accused shows that the trial court committed plain error affecting the outcome
of the proceeding, an appellate court is not required to correct it . . . .” Id. at ¶ 23. Courts
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are cautioned “to notice plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Barnes at 27,
quoting State v. Long,
53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶33} Given the factual setting of Appellant’s confession, there are two discrete
issues we must determine: first, whether he was subjected to a custodial interrogation,
which would trigger the requirements for law enforcement officers to advise him of his so-
called Miranda rights against self-incrimination; and second, regardless of whether
Appellant was subjected to custodial interrogation, whether Appellant’s confession was
voluntary.
Custodial interrogation
{¶34} In Miranda v. Arizona, 384 U.S. 436, 444 (1966), “the United States
Supreme Court established procedural safeguards for securing the privilege against self-
incrimination guaranteed by the Fifth Amendment to the United States Constitution.”
Cleveland v. Oles,
2017-Ohio-5834, ¶ 8. Those rights guaranteed by the Fifth
Amendment apply with equal force to the States by virtue of the Fourteenth Amendment.
Malloy v. Hogan,
378 U.S. 1, 8 (1964); see also Ohio Const., art. I, § 10.
{¶35} However, “[t]he procedural safeguards identified in Miranda apply only
when one is subjected to custodial interrogation.” State v. Hoffner, 2004-Ohio-3430, ¶ 26.
“A custodial interrogation is ‘questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way.’”
Oles at ¶ 9, quoting
Miranda at 444.
{¶36} “[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
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demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination.” Miranda at 444. “A suspect in police custody ‘must be warned prior to
any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if he
so desires.’” State v. Lather,
2006-Ohio-4477, ¶ 6, quoting Miranda at 479.
{¶37} “Any statement, question or remark which is ‘reasonably likely to elicit an
incriminating response’ is an interrogation.” State v. Knuckles, 65 Ohio St.3d 494, 495
(1992), quoting Rhode Island v. Innis,
446 U.S. 291, 301 (1980).
{¶38} To determine whether an individual is in custody, and thus afforded the
procedural safeguards outlined in Miranda, a court must consider “the circumstances
surrounding the interrogation” and whether, under those circumstances, “a reasonable
person [would] have felt he or she was not at liberty to terminate the interrogation and
leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). “Although the circumstances of
each case must certainly influence a determination of whether a suspect is ‘in custody’
for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there
is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a
formal arrest.” California v. Beheler,
463 U.S. 1121, 1125 (1983), quoting Oregon v.
Mathiason,
429 U.S. 492, 495 (1977). “A determination of whether an interrogation is
custodial or non-custodial depends on the objective circumstances of the interrogation,
not the subjective views held by either the officer or the person being questioned.” State
v. Guzzi,
2015-Ohio-4426, ¶ 18 (11th Dist.), citing Stansbury v. California,
511 U.S. 318,
323 (1994).
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{¶39} Looking at the totality of the circumstances, courts apply several factors as
instructive to determine whether an interview is custodial including: “‘where the
interrogation occurred, whether the investigation had focused on the subject, whether the
objective indicia of arrest were present, and the length of the questioning involved.’” State
v. Cheadle, 2008-Ohio-2393, ¶ 37 (11th Dist.), quoting State v. Scott,
146 Ohio App.3d
233, 238 (5th Dist. 2001), citing
Stansbury at 321. Other factors to consider include the
use of physical restraints, statements made during the interview, and whether the
interviewee was released following questioning. Howes v. Fields,
565 U.S. 499, 509
(2012).
{¶40} The interviewee’s freedom of movement is not, alone, determinative. Id.
Instead, courts should ask “the additional question whether the relevant environment
presents the same inherently coercive pressures as the type of station house questioning
at issue in Miranda. ‘Our cases make clear . . . that the freedom-of-movement test
identifies only a necessary and not a sufficient condition for Miranda custody.’”
Id. quoting
Maryland v. Shatzer,
559 U.S. 98, 112 (2010).
{¶41} In this case, the record established at trial objectively demonstrates that
Appellant was not in custody during his interview. Appellant scheduled the time of the
interview and voluntarily appeared at the Ravenna Police Department. The 38-minute
interview did not take place in an interrogation room or a holding cell but rather was
conducted in a department common area used as a conference room or lunchroom. The
doors to that room were shut, but Appellant was told that the doors did not lock and was
seated closest to the doors. He was told that he was free to leave at any time and did not
have to talk to Detective Svab. Detective Svab further told Appellant that no matter what
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he said, he would leave the interview but did caution Appellant that there might be
consequences for what he said. At the end of the interview, Appellant was told he was
free to go, and he left the police department. These factors all support the conclusion that
Appellant was not in custody during his interview and therefore was not entitled to the
procedural safeguards as provided in Miranda. Appellant’s request for an expansion of
Miranda to include non-custodial interrogations of suspects is not well-taken.
Voluntariness of confession
{¶42} Separate from the issue of compliance with Miranda in custodial
interrogations is the voluntariness of the defendant’s confession. In re N.J.M., 2010-Ohio-
5526, ¶ 18 (12th Dist.), citing State v. Chase, 55 Ohio St.2d 237, 246 (1978). Due process
concerns require the exclusion of confessions that are obtained involuntarily. Dickerson
v. United States,
530 U.S. 428, 434 (2000). To satisfy due process in reference to a
confession, the government must prove by a preponderance of the evidence that the
confession was voluntary. Lego v. Twomey,
404 U.S. 477, 489 (1972).
{¶43} A statement is voluntary if it is “the product of an essentially free and
unconstrained choice by its maker . . . .” Culombe v. Connecticut, 367 U.S. 568, 602
(1961). A court reviews the totality of the circumstances surrounding the confession
including the “‘characteristics of the accused and the details of the interrogation’” to
determine “‘whether a defendant’s will was overborne’ by the circumstances surrounding
the giving of a confession.”
Dickerson at 434, quoting Schneckloth v. Bustamonte,
412
U.S. 218, 226 (1973). “[A]dmonitions to tell the truth directed at a suspect by police
officers are not coercive in nature.” State v. Wiles,
59 Ohio St.3d 71, 81 (1991). “Promises
that a defendant’s cooperation would be considered in the disposition of the case, or that
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a confession would be helpful, does not invalidate an otherwise legal confession.” State
v. Loza, 71 Ohio St.3d 61, 67 (1994).
{¶44} The record established at trial demonstrates that Appellant’s confession
was voluntary. Detective Svab did not badger or berate Appellant. He was calm, cordial,
and friendly. Many of the same factors that rendered the interview non-custodial also
demonstrate the voluntariness of the confession. Further, Appellant’s personal
characteristics suggest that his confession was voluntary. Appellant said that he has
oppositional defiance disorder, which makes taking direction from others difficult for him.
Although Detective Svab did suggest what Appellant’s conduct might have been,
Appellant fully embraced these descriptions and agreed that he had gone too far and that
curiosity killed the cat. Appellant’s self-described diagnosis would suggest that he was
not prone to simply agree with others in order to appease them, and nothing suggests he
did so here.
{¶45} Accordingly, Appellant’s first and second assignments of error are without
merit.
{¶46} Appellant’s third assignment of error states: “The Court erred by failing to
declare a mistrial after the State prejudiced the jury against Appellant.”
{¶47} In his third assignment of error, Appellant argues that the trial court should
have declared a mistrial due to prosecutorial misconduct. He says the misconduct
manifested itself through the State’s portrayal of him as “being a lazy good-for-nothing” in
an attempt to make the jury dislike him. He also argues that the State improperly relied
on “cute” pictures of MK to play on the sympathies of the jury.
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{¶48} Appellant’s trial counsel did not seek a mistrial. Further, Appellant’s trial
counsel did not object to the State’s characterization of Appellant as lazy. Finally,
although trial counsel objected to using a picture of MK during Detective Svab’s
testimony, counsel did not object to the admission of her pictures and did not object to
any other use during the trial. Appellant has waived all but plain error in reference to our
review of whether the trial court should have declared a mistrial.
{¶49} “A trial court is entitled to broad discretion in considering a motion for a
mistrial, and our standard of review is whether the trial court abused its discretion.” State
v. Rosebrook, 2017-Ohio-9261, ¶ 9 (11th Dist.). “The decision to grant a mistrial ‘is an
extreme remedy only warranted in circumstances where a fair trial is no longer possible
and it is required to meet the ends of justice.’”
Id., quoting State v. Bigsby, 2013-Ohio-
5641, ¶ 58 (7th Dist.). “A mistrial will only be granted when the substantial rights of a party
are adversely affected.”
Id.
{¶50} In a claim of prosecutorial misconduct, whether based on improper remarks
or other conduct, we consider (1) whether the State’s remarks or conduct were improper,
and if so, (2) whether they prejudicially affected the appellant’s substantial rights. State v.
Treesh, 2001-Ohio-4, ¶ 22. The allegedly improper statements or conduct are evaluated
in the context of the entire trial.
Id. Improprieties do “not affect a substantial right of the
accused if it is clear beyond a reasonable doubt that the jury would have found the
defendant guilty even without” them.
Id.
{¶51} None of the State’s conduct rose to the level that Appellant did not receive
a fair trial, and the trial court did not err in failing to sua sponte order a mistrial based on
the State’s comments. The State’s characterization of Appellant was not gratuitous and
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served to establish that MK’s mother was working long hours and that either Appellant or
MK’s great-grandmother cared for MK during the day. The testimony also established the
urgency of Savannah Watson’s decision to remove herself from Appellant after she
suspected that he was abusing MK. Despite Watson paying the rent and utilities, Watson
immediately moved out to get MK away from him. In addition to this, Appellant’s interview
with Detective Svab contains statements from Appellant that he was not working. The
State’s questions about whether Appellant worked or paid bills were probative and were
not substantially outweighed by the danger of unfairly prejudicing the jury about
Appellant’s character. See Evid. R. 403(A).
{¶52} The State’s reliance on the use of MK’s pictures during the trial may be
characterized as cumulative, particularly as presented by Detective Svab. See Evid.R.
403(B). However, the determination to admit or exclude evidence lies within the discretion
of the trial court and will not be reversed absent an abuse of discretion. State v. Glavic,
2024-Ohio-209, ¶ 44 (11th Dist.). We cannot say that the trial court abused its discretion
by overruling Appellant’s objection to the use of MK’s picture during Detective Svab’s
testimony. To be sure, it is clear beyond a reasonable doubt that the jury would have
found the defendant guilty even without the additional use of MK’s picture and the State’s
use of the picture during Detective Svab’s testimony was brief.
{¶53} Accordingly, Appellant’s third assignment of error is without merit.
{¶54} Appellant’s fourth assignment of error states: “The Court erred by denying
Appellant effective assistance of counsel.”
{¶55} In his final assignment of error, Appellant argues that trial counsel was
ineffective for failing to file a motion to suppress the admission of Appellant’s interview
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with Detective Svab. He also asserts that counsel was ineffective by failing to call
Appellant’s family members as witnesses to impeach the credibility of the State’s
witnesses’ characterization of him as lazy and could have called a co-worker of Savannah
Watson’s to testify that she did not work the long hours she said she did during trial.
Appellant maintains that this evidence may have undermined Savanah Watson’s
credibility and led to his acquittal.
{¶56} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
State v. Story, 2007-Ohio-4959, ¶ 49 (11th Dist.), quoting Strickland v. Washington,
466
U.S. 668, 686 (1984). An appellant must demonstrate (1) counsel was deficient in some
aspect of representation, and (2) there is a reasonable probability, were it not for counsel’s
errors, the result of the proceedings would have been different.
Strickland at 687, 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. A failure to “satisfy one prong of the Strickland test negates a court’s need to
consider the other.” State v. Madrigal,
87 Ohio St.3d 378, 389 (2000), citing
Strickland at
697.
{¶57} An appellant “‘must show that the attorney made errors so serious that he
or she was not functioning as “counsel” as guaranteed by the Sixth Amendment, and . . .
that he or she was prejudiced by the deficient performance.’” Story at ¶ 49, quoting State
v. Batich,
2007-Ohio-2305, ¶ 42 (11th Dist.). Ohio courts presume that every properly
licensed attorney is competent, and therefore a defendant bears the burden of proof.
State v. Smith,
17 Ohio St.3d 98, 100 (1985). “Counsel’s performance will not be deemed
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ineffective unless and until counsel’s performance is proved to have fallen below an
objective standard of reasonable representation and, in addition, prejudice arises from
counsel’s performance.” State v. Bradley, 42 Ohio St.3d 136, 142 (1989). “Debatable trial
tactics generally do not constitute a deprivation of effective counsel.” State v. Phillips,
74
Ohio St.3d 72, 85 (1995). “‘Failure to do a futile act cannot be the basis for claims of
ineffective assistance of counsel, nor could such a failure be prejudicial.’” State v.
Henderson,
2007-Ohio-2372, ¶ 42 (8th Dist.), quoting State v. Shannon,
1982 WL 5057,
*2 (9th Dist. June 16, 1982).
{¶58} “‘Failure to file a suppression motion does not constitute per se ineffective
assistance of counsel.’” Madrigal at 389, quoting Kimmelman v. Morrison,
477 U.S. 365,
384 (1986). “‘When claiming ineffective assistance due to failure to file or pursue a motion
to suppress, an appellant must point to evidence in the record showing there was a
reasonable probability the result of [the proceeding] would have differed if the motion had
been filed or pursued.’” State v. Walker,
2010-Ohio-4695, ¶ 15 (11th Dist.), quoting State
v. Gaines,
2007-Ohio-1375, ¶ 17 (11th Dist.). “‘If case law indicates the motion would not
have been granted, then counsel cannot be considered ineffective for failing to prosecute
it.’”
Id., quoting
Gaines at ¶ 17.
{¶59} In this case, we cannot say that trial counsel’s performance fell below and
objective standard of reasonable representation. As discussed above in reference to the
first and second assignments of error, the trial record does not support the conclusion
that a motion to suppress would have been successful in excluding Appellant’s taped
confession from trial.
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{¶60} Appellant’s contention that trial counsel should have called certain
individuals to testify on his behalf presumes facts that are not in the record. We cannot
assume that family members or Savanah Watson’s coworkers would have testified as
described in Appellant’s brief. Because the record does not contain any evidence to
suggest that additional witnesses could or would have so testified, trial counsel’s failure
to call such witnesses amounts to a matter of trial tactics. We will not second guess
debatable trial tactics when determining whether trial counsel rendered ineffective
assistance of counsel.
{¶61} Appellant has failed to demonstrate that trial counsel’s performance fell
below an objective standard of reasonable representation and that the outcome of his
proceeding would have been different.
{¶62} Accordingly, Appellant’s fourth assignment of error is without merit.
{¶63} For the foregoing reasons, the judgment of the Portage County Court of
common Pleas is affirmed.
MATT LYNCH, J.,
EUGENE A. LUCCI, J.,
concur.
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