[Cite as State v. Harris,
2025-Ohio-825.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 23CA6
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
CHRISTOPHER HARRIS, :
:
Defendant-Appellant. : RELEASED: 03/06/2025
APPEARANCES:
Jeffery C. Marks, Ross County Prosecuting Attorney, Chillicothe, Ohio, for
appellee.
Peter Galyardt, Assistant Public Defender, Columbus, Ohio, for appellant.
Wilkin, J.
{¶1} This is an appeal of a Ross County Court of Common Pleas
judgment entry that found appellant, Christopher Harris (“Harris”), guilty of driving
while under the influence of alcohol and/or drugs in violation of R.C.
4511.19(A)(1)(a) (“OVI”), with three or more priors in the past ten years, making it
a fourth-degree felony.
{¶2} In his sole assignment of error, Harris asserts that his trial counsel
was ineffective because he failed to call a witness to testify at his suppression
hearing. After reviewing the record, the parties’ arguments, and the applicable
law, we find that Harris has failed to establish that his trial counsel was ineffective
for not calling that witness. Therefore, we affirm his conviction.
Ross App. No. 23CA6 2
FACTS AND PROCEDURAL BACKGROUND
{¶3} At approximately 5:10 p.m. on December 28, 2020, a 9-1-1 call was
received reporting an auto accident on Rozelle Creek Road in Ross County,
Ohio. Ohio State Highway Patrol Trooper, Ryan Miller, was dispatched to
investigate the accident. When Trooper Miller arrived at the scene, he observed
a single-car accident that involved Harris. After an investigation, Harris was
arrested and charged with OVI.
{¶4} Harris filed a motion to suppress all the evidence obtained during the
accident investigation. Harris alleged that Trooper Miller had no reasonable
suspicion to check his eyes. Harris claimed that Trooper Miller delayed his
transport to the hospital to question him. Thus, the trooper placed Harris in
custodial interrogation requiring that Harris be read his Miranda rights and Harris
unequivocally invoked his right to counsel. Finally, Harris asserted that the field
sobriety tests Trooper Miller administered were not in substantial compliance with
the National Highway Transportation Safety Administration’s (NHTSA)
regulations.
{¶5} The court held a suppression hearing. The State’s only witness was
Trooper Miller, who testified that upon arriving to the accident scene, he
observed a white Camry that had overturned after striking a guardrail and a
buried cable box. Trooper Miller parked his cruiser and approached an
emergency squad that was at the scene. Trooper Miller stated that Harris was in
the squad.
Ross App. No. 23CA6 3
{¶6} Trooper Miller testified that upon entering the squad he “detected the
odor of an alcoholic beverage.” Harris told the trooper that black ice caused his
accident. Trooper Miller stated that the weather conditions were clear and the
road was dry. He did not observe any black ice. Trooper Miller noticed that
Harris’ eyes were “red and glassy.” His “words were very slow” and “mumbling.”
Trooper Miller stated that Harris denied drinking alcohol. When asked if Harris
used marijuana, Trooper Miller asserted he detected the odor of marijuana and
that Harris admitted that he had a medical marijuana card. Trooper Miller also
testified that while conducting an administrative inventory of Harris’ vehicle, he
discovered a “bottle of liquor[,]” but could not recall the brand. Trooper Miller
stated that Harris had no visible injuries.
{¶7} Trooper Miller testified as part of his investigation, he performed field
sobriety tests upon Harris. He asserted that he was trained to conduct field
sobriety tests, including the horizonal gaze nystagmus test (HGN), which is
standardized by the NHTSA. The first step in applying the HGN test is
“premedical screening,” which ensures that the test subject has no injuries that
could invalidate the test results. Trooper Miller performed the premedical
screening on Harris and determined that he did not have any injuries that would
invalidate the HGN test. The trooper then performed the HGN test and observed
six positive indications out of six possible indicators from Harris that he was
under the influence of alcohol.
{¶8} Trooper Miller testified that he also administered the Vertical Gaze
Nystagmus (“VGN”) test upon Harris. He stated that he detected vertical
Ross App. No. 23CA6 4
nystagmus in Harris’ eyes, which was also an indication that he was under the
influence.
{¶9} There were other field sobriety tests that could have been
administrated as well, including the walk-and-turn and one-leg-stand tests.
However, Trooper Miller did not administer these tests to Harris because he was
being prepared for transport to the hospital. Trooper Miller testified that Harris
was transported to the hospital in Adena. Upon his release from Adena, Harris
was transported to the Chillicothe Patrol Post, where he provided a urine sample.
{¶10} Trooper Miller admitted that when he spoke to Harris at the accident
scene, Harris made a comment about wanting a lawyer. However, the trooper
told Harris that he was merely asking routine questions that he asks at every
crash.
{¶11} On November 1, 2022, the trial court issued a judgment entry that
summarily overruled Harris’ motion to suppress the evidence.
{¶12} On November 29, 2022, Harris went to trial on the OVI charge.
After brief opening statements by counsel for the State and for Harris, the State
presented one witness, Trooper Miller.
{¶13} Similar to the suppression hearing, Trooper Miller testified about his
investigation of Harris’ automobile accident. Trooper Miller recounted Harris’
single car crash and the steps that he took to investigate the crash, including his
administration of the HGN and the VGN tests on Harris, and that the results of
said tests indicated that Harris was OVI.
Ross App. No. 23CA6 5
{¶14} The defense also called a single witness, Eric Price. Price was the
paramedic who treated Harris after his accident. Price could not recall the details
of the accident, but testified that he completed a patient-care report regarding
Harris’ treatment. He stated that the report included his observations of Harris
after the crash. One of those observations was whether Harris was impaired by
drugs or alcohol. The report stated “none reported.”
{¶15} There was also a section of the report that asked whether there was
evidence of alcohol and drug impairment. It was marked “no.”
{¶16} Price was asked if he could recall whether or not Harris had an odor
of alcohol. Price said he could not recall, but, if he had, then he would have put it
in his report. Price testified that he asked Harris whether he had used drugs or
consumed alcohol and the report indicated none reported. Price further
confirmed that he was required to accept the answers that Harris provided.
{¶17} Price confirmed that his purpose is patient care, not law
enforcement. Price admitted that he was not trained in any kind of “advanced
detection of OVI or clues of impairment.”
{¶18} The jury found Harris guilty of OVI, with three or more priors in the
past ten years, making it a fourth-degree felony. The court sentenced Harris to
three years of community control. It is this conviction that Harris now appeals.
ASSIGNMENT OF ERROR
CHRISTOPHER HARRIS’S TRIAL COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶19} Harris maintains that his trial counsel was ineffective for failing to
present the paramedic’s report and testimony at his suppression hearing. Harris
Ross App. No. 23CA6 6
maintains that to show counsel is ineffective, the defendant must show that
counsel’s performance was deficient and prejudicial, i.e., but for the deficient
representation there is a reasonable probability that the outcome of the
proceeding would have been different.
{¶20} Harris asserts that a law enforcement officer must have reasonable
suspicion of OVI before administering field sobriety tests. The trooper testified
that Harris (1) was driving and crashed, (2) had red, glassy eyes, (3) mumbled
and jumbled together his words, (4) had droopy eyelids, (5) had an odor of
alcohol and marijuana, and (6) had a medical marijuana card. Harris asserts that
the paramedic’s testimony (at trial) contradicted many of those observations.
However, Harris claims, the paramedic testified unequivocally that he
documented any relevant observations he made the night of the accident and
Harris asserts that the paramedic did not document anything about red, glassy
eyes, droopy eyelids, mumbled or jumbled speech, or an odor of alcohol.
However, because Harris’ trial counsel never called the paramedic as a witness
at the suppression hearing, the judge was unable to consider this conflicting
testimony.
{¶21} Harris maintains that if the trial court had heard this testimony there
was a reasonable probability that it would have found that the trooper did not
have reasonable suspicion that Harris was OVI so the field sobriety tests would
not have been justified. Without the results from the field sobriety tests, the only
evidence that Harris was under the influence was the conflicting testimony, which
would have been insufficient to support an OVI conviction. Therefore, Harris
Ross App. No. 23CA6 7
maintains that there was a reasonable probability that his trial counsel’s failure to
call the paramedic to testify at the suppression hearing would have changed the
outcome of his trial. Consequently, he claims that his trial counsel was
ineffective for not calling the paramedic to testify at the suppression hearing.
{¶22} In response, the State argues that even if Harris’ trial counsel would
have called the paramedic to testify at the suppression hearing to challenge
whether Trooper Miller had reasonable suspicion to conduct field sobriety tests,
the argument was “invalid.” Relying on State v. Andrews, the State asserts that
the trooper’s reasonable suspicion to conduct field sobriety tests is “ ‘viewed
through the eyes of the reasonable and prudent police officer on the scene who
must react to events as they unfold.’ ” 57 Ohio St.3d 86, 87-88 (1980).
Therefore, the State argues that only the trooper’s observations and his
articulations of them are what is relevant in a suppression hearing. Furthermore,
a paramedic is not trained in law enforcement, “so his testimony cuts more to the
merits of the case, rather than speaking to whether the government infringed on
[Harris’] constitutional Fourth Amendment rights.”
{¶23} The State also argues that Harris employed a strategy waiting until
trial to have the paramedic testify where he could “cast aspersions on the
credibility of the trooper with the jury.”
{¶24} Finally, the State argues, that even if Harris’ trial counsel should
have called the paramedic to testify at the suppression hearing, the decision to
not have the paramedic testify until trial did not prejudice Harris because the
standard of proof at trial is beyond a reasonable doubt, which is higher than
Ross App. No. 23CA6 8
reasonable suspicion or probable cause. And the jury convicted Harris of OVI
under that higher standard of proof.
{¶25} Harris responded in a reply brief. Harris first agreed that “the totality
of the circumstances ‘are to be viewed through the eyes of the reasonable and
prudent police officer[.]’ ” However, he claims that standard has no impact on
assessing whether a police officer is credible. Had the paramedic been called to
testify, he would have challenged Trooper Miller’s credibility regarding whether
Harris exhibited observable signs of being under the influence.
{¶26} Harris also alleges that the paramedic’s testimony included “all
relevant observations” in his report regarding Harris. Specifically, the paramedic
did not observe, or include in his report, that Harris had red glassy eyes, droopy
eyelids, mumbled and jumbled words, or have an odor of alcohol or marijuana.
{¶27} Harris also admits that the paramedic was not trained to interdict
impaired drivers, but he was trained to make accurate observations regarding
proper medical care. His lack of law enforcement training did not impact his
observational skills.
{¶28} Lastly, Harris argues at the reasonable-suspicion stage, the court’s
credibility determination included only considering the totality of the
circumstances before the nystagmus test was administered. Thus, it would have
been the credibility of the trooper’s testimony compared to the credibility of the
paramedic’s testimony. Harris claims that the trooper’s investigatory motivation
was “far more susceptible to confirmation bias.” Harris maintains that if the
paramedic’s testimony and report had been presented at the suppression
Ross App. No. 23CA6 9
hearing, then there is a reasonable probability that the outcome of Harris’ trial
would have been different.
A. Law
1. Standard of Review
{¶29} To prove ineffective assistance of counsel, a petitioner “must show
(1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel's errors, the proceeding's result would have been
different.” State v. Short, 2011-Ohio-3641, ¶ 113 (4th Dist.), citing Strickland v.
Washington,
466 U.S. 668, 687-688 (1984). Therefore, “[f]ailure to establish
either element is fatal to the claim.” State v. Jones,
2008-Ohio-968, ¶ 14 (4th
Dist.).
{¶30} “In Ohio a properly licensed attorney is presumed competent.”
State v. Ruble, 2017-Ohio-7259, ¶ 47 (4th Dist.), citing State v. Gondor, 2006-
Ohio-6679, ¶ 62. Therefore, Harris has the burden of proving that his trial
counsel was ineffective.
Id. “It is generally presumed that the tactical decision of
calling or refusing to call witnesses will not sustain a claim of ineffective
assistance of counsel.” State v. Brown,
2023-Ohio-3906, ¶ 69 (5th Dist.), State
v. Coulter,
75 Ohio App.3d 219, 230 (12th Dist. 1992); State v. Williams,
74 Ohio
App.3d 686, 695 (8th 1991); State v. Johnson,
2014-Ohio-657, ¶ 38 (5th Dist.).
“Even debatable trial tactics and strategies do not constitute ineffective
assistance of counsel.” State v. Martin,
2005-Ohio-1369, ¶ 20 (2d Dist.), citing
State v. Clayton,
62 Ohio St.2d 45 (1980). “The mere failure to subpoena
Ross App. No. 23CA6 10
witnesses for a trial is not a substantial violation of defense counsel's essential
duty absent a showing of prejudice.” State v. Coulter,
75 Ohio App. 3d 219, 230
(12th Dist. 1992), citing State v. Hunt,
20 Ohio App.3d 310, 312, (9th Dist. 1984).
{¶31} “ ‘In order to overcome this presumption, the petitioner must submit
sufficient operative facts or evidentiary documents that demonstrate that the
petitioner was prejudiced by the ineffective assistance.’ ” State v. Avery, 2024-
Ohio-3094, ¶ 17 (4th Dist.), quoting Gondor at ¶ 62. “To demonstrate prejudice,
[Harris] ‘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.’ ” Id., quoting
Strickland at 694. Mere speculation cannot support the
prejudice requirement of an ineffective assistance of counsel claim. State v.
Short,
2011-Ohio-3641, ¶ 119. That is, the reasonable probability cannot arise
from speculation.
2. Reasonable Suspicion and Field Sobriety Tests
{¶32} “Under Ohio law, a peace officer's extension of a consensual
encounter to ‘request that a driver perform field sobriety tests “must be
separately justified by specific, articulable facts showing a reasonable basis for
the request.” ’ ” State v. Murphy, 2023-Ohio-1419, ¶ 21 (6th Dist.), quoting State
v. Watkins,
2021-Ohio-1443, ¶ 25 (6th Dist.), citing State v. Trevarthen, 2011-
Ohio-1013, ¶ 15 (11th Dist.), quoting State v. Evans,
127 Ohio App.3d 56, 62
(11th Dist.1998); State v. Matzinger,
2017-Ohio-324, ¶ 34 (4th Dist.) (“Upon a
lawful traffic stop, an officer must have reasonable suspicion of OVI before
Ross App. No. 23CA6 11
administering field sobriety tests.”). Reasonable suspicion “is based on specific
and articulable facts that criminal behavior has occurred or is imminent.” State v.
Hairston,
2019-Ohio-1622, ¶ 9, citing Terry v. United States,
392 U.S. 1, 30
(1968).
{¶33} “The determination whether an officer had reasonable suspicion [of
criminal activity] must be based on the totality of circumstances ‘viewed through
the eyes of the reasonable and prudent police officer on the scene who must
react to events as they unfold.’ ” Id., ¶ 10, quoting State v. Andrews, 57 Ohio
St.3d 86, 87-88. “A court reviewing the officer's actions must give due weight to
his experience and training and view the evidence as it would be understood by
those in law enforcement.” Andrews at 88, citing United States v. Cortez,
449
U.S. 411, 417 (1981). "[A] trained officer draws inferences and makes
deductions—inferences and deductions that might well elude an untrained
person.”
Cortez at 418.
{¶34} Courts look to numerous indicators to evaluate whether a law
enforcement officer has reasonable articulable suspicion that a driver is under
the influence. For example, courts have held that “[w]here a non-investigatory
stop is initiated and the odor of alcohol is combined with glassy or bloodshot
eyes and further indicia of intoxication . . . reasonable suspicion exists.”
(Emphasis sic.) State v. Dye, 2021-Ohio-3513, ¶ 68 (6th Dist.), quoting State v.
Beeley,
2006-Ohio-4799, 2006, ¶ 16 (6th Dist.); State v. Wood,
2023-Ohio-3099,
¶ 34 (2d Dist.). “ ‘[F]urther indicia of intoxication’ that [have been] found sufficient
to provide an officer with reasonable suspicion include admission to consuming
Ross App. No. 23CA6 12
alcohol, slurred speech, and fumbling or searching for a driver's license or
registration paperwork.” (Emphasis added.)
Dye at ¶ 68, citing
Beeley at ¶ 16.
{¶35} Additionally, “[a] ‘single vehicle accident suggests erratic driving
from which impairment could be inferred.’ ” State v. Teeters, 2002-Ohio-6001, ¶
11 (7th Dist.), quoting State v. Conover,
23 Ohio App.3d 161, 163 (9th Dist.
1985). See also State v. Cunningham,
2017-Ohio-377, ¶ 16 (7th Dist.). This
inference is even more compelling when there are no “significant outside factors”
contributing to the accident.
Cunningham at ¶ 16, quoting State v. Heiney, 2007-
Ohio-1199, ¶ 23 (11th Dist.).
B. Analysis
{¶36} At the suppression hearing, Trooper Miller testified about
observations he made of Harris that other courts have found support reasonable
suspicion of intoxication, including that Harris had an odor of alcohol, his eyes
were glassy and bloodshot, and his speech was jumbled and “very slow.” See
Dye and Wood, supra. Moreover, Harris told Trooper Miller that black ice caused
his accident even though the weather was clear and the road was dry that day.
Harris also denied that he had been drinking, but admitted that he had a medical
marijuana card.
{¶37} At the trial, the paramedic, Price, testified that he could not recall
from memory the events from Harris’ accident, but was asked to read from a
patient care report that he had prepared that day. The report indicated that
Harris was not impaired by drugs or alcohol. He also testified that the patient
care report contained observations that he made of Harris. Price was asked if he
Ross App. No. 23CA6 13
recalled whether Harris had an odor of alcohol. He stated that he could not
recall, but claimed, if he had, he would have put that in the report.
{¶38} However, on cross examination, Price testified that the patient-care
reports are auto-populated on a computer in the squad while on scene. Price
also testified that when he is treating a person, he is required to ask him or her
whether they are under the influence of drugs or alcohol, and absent evidence to
the contrary, he must accept their response. Price stated that Harris told him
(Price) that he did not use drugs or alcohol that day.
{¶39} While some of Price’s testimony may have been inconsistent with
Trooper Miller’s observation that Harris had an odor of alcohol, the trooper made
other observations and was privy to facts that supported his suspicion that Harris
could have been under the influence of alcohol. For example, Trooper Miller
testified that Harris’ eyes were red and glassy and his speech was slow and
jumbled. Trooper Miller also maintained that Harris was involved in a single-
vehicle crash and that Harris believed his car crash was caused by black ice.
However, Trooper Miller testified that the weather was clear and the road surface
was dry that day. Price never specifically addressed, let alone refuted any of
these observations or facts.
{¶40} Furthermore, Trooper Miller was trained to interdict drivers who
were under the influence of alcohol and drugs, while Price was trained to treat
patients. Price had never been trained in advanced detection of OVI or clues of
impairment. While their powers of observation may have been the same or
similar, they were looking for different things. Trooper Miller was looking into
Ross App. No. 23CA6 14
what caused the single-car accident including the investigation of the driver’s
culpability. Price, on the other hand, was observing his patient for the purpose of
treating him. As an expert in assessing whether drivers are intoxicated, the trial
court afforded due weight to Trooper Miller’s observations in denying Harris’
motion to suppress. Andrews, 57 Ohio St.3d at 88. Even if Price had testified at
the suppression hearing, it is unclear whether the trial court would have afforded
his testimony similar weight to that of the trooper’s because Price had not been
trained to interdict intoxicated drivers.
{¶41} Considering the aforementioned facts, even if Price had been
subpoenaed to testify at the suppression hearing, we find it is speculative that the
trial court would have found Price’s testimony persuasive enough to discredit
Trooper Miller’s testimony and grant Harris’ motion to suppress. Speculation is
insufficient to show prejudice. Absent prejudice, Harris’ ineffective assistance of
counsel claim fails.
CONCLUSION
{¶42} Because Harris cannot show that there was a reasonable probability
that the trial court would have granted his motion to suppress had his trial
attorney subpoenaed Price to testify at the suppression hearing, we overrule his
sole assignment of error. Accordingly, we affirm the trial court’s judgment entry
of conviction.
JUDGMENT AFFIRMED.
Ross App. No. 23CA6 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay
the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
ROSS COUNTY COURT OF COMMON PLEAS to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant
to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
