State v. Safo

[Cite as State v. Safo, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                           No. 111381
                 v.                              :

BRIANA SAFO,                                     :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 29, 2022


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-21-662091-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Christopher Woodworth, Assistant
                 Prosecuting Attorney, for appellee.

                 Allison F. Hibbard, for appellant.

LISA B. FORBES, J.:

                   Briana Safo (“Safo”) appeals her assault and obstructing official

business convictions. After reviewing the facts of the case and pertinent law, we

affirm the trial court’s decision.
I.   Facts and Procedural History

               At approximately 1:00 a.m. on July 31, 2021, East Cleveland Police

Officer Travis Thompson (“Off. Thompson”) was on patrol duty when he saw a

vehicle driving on Superior Avenue faster than the 25 m.p.h. speed limit. Off.

Thompson initiated a traffic stop as the car turned onto Euclid Avenue. The driver

did not stop, continued to speed, lost control of the car, and crashed into another

vehicle. As Off. Thompson was attempting to arrest the driver, Safo arrived on the

scene, parked her car in the middle of the street, and approached Off. Thompson.

Off. Thomson instructed Safo to do two things: stand back and move her car from

the middle of the street. Safo did not follow either order and instead began yelling

at Off. Thompson. Off. Thompson attempted to arrest Safo for obstructing official

business, and as he grabbed her arm to handcuff her, she punched him. The incident

was captured on video from Off. Thompson’s body camera.

               On August 31, 2021, Safo was charged with assault in violation of

R.C. 2903.13(A), a fourth-degree felony, with a furthermore clause indicating that

the victim was a peace officer; and, obstructing official business, a fifth-degree

felony, in violation of R.C. 2921.31(A), with a furthermore clause indicating that Safo

“created a risk of physical harm to [Off.] Thompson.”

               After a bench trial, on February 24, 2022, the court found Safo guilty

as indicted and sentenced her to one year of community-control sanctions. It is from

these convictions that Safo appeals.
II. Trial Testimony

               Off. Thomson testified that he was on patrol duty on the night of

July 30, 2021, into the morning of July 31, 2021, in East Cleveland. Off. Thompson

testified as follows about the events giving rise to the incident at issue in this case:

      So I was in my patrol car sitting behind a plaza near Euclid and
      Superior just to the east of Euclid. And I had my window down, and I
      heard tires squealing coming from the east of my direction. And then
      when I looked out the window, I saw a car driving west on Superior at
      what I visually estimated to be about 60 miles per hour. The speed limit
      up there is 25.

      When the car passed me, I pulled out of the parking lot and tried to get
      behind the car. The light at the intersection of Euclid and Superior was
      red. He made a right turn onto Euclid from Superior, didn’t stop for
      the red light before making the turn. And we were both on Euclid. I
      got behind him, turned my lights on, tried to make a traffic stop. He
      didn’t stop. He instead accelerated.

      He was going east on Euclid, and then he tried to turn right to go south
      on Forest Hills Boulevard at a high rate of speed. He lost control of the
      vehicle. He crashed into a concrete barrier that separated the north
      and south lanes on Forest Hills Boulevard. He drove over the barrier
      and crashed into a Toyota Camry that was coming northbound stopped
      at the red light, and the impact caused the Camry to ricochet into a
      traffic box or an electrical box that controlled the traffic signals, and
      that disabled the traffic lights.

               Off. Thompson testified that he ordered the driver, Bilyion Sims

(“Sims”), “out of the car at gunpoint and had him lay on the ground. He complied,

and I approached him to place him in handcuffs while he was laying on the ground.”

Off. Thompson testified about what happened next:

      While I was attempting to put [Sims] in handcuffs, [Safo] approached
      the scene. She parked her car * * * in the southbound lanes of travel on
      Forest Hills Boulevard right next to my patrol car. So she was
      essentially blocking the lane.
      And she approached me and told me not to do that to her brother while
      I’m trying to place him in handcuffs. I ordered her several times to get
      away from me or to back up and to move her car out of the roadway.
      And I was able to put [Sims] in the handcuffs, and I was still ordering
      her to move her vehicle at which point she refused. She told me not to
      talk to her because she’s grown.

      And at that point, I believe my backup arrived * * * so she was able to
      watch over [Sims] while I attempted to put [Safo] in handcuffs for
      obstructing official business.

               Off. Thompson testified that he was the only officer on the scene until

backup arrived.    According to Off. Thompson, “[i]t was a very high-stressed

situation. It was a little out of control. There was a lot going on, and there’s people

around me. [Sims] just ran from me. I don’t know what he was running for. I don’t

know what all these people are trying to do, you know, coming up.” Despite Off.

Thompson telling Safo “multiple times” to back up and move her car, she “still hadn’t

done so. She was yelling, and I was trying to get her attention and yell over her and

[tell her to] move her car or it would be towed. And at that point, she decided she

didn’t want to move her car. She told me not to talk to her.”

               Off. Thompson grabbed Safo’s arm because he “was intending to

place her under arrest.” Asked what occurred next, Off. Thompson stated, “She

punched me in the face, right on my eye. * * * She punched me several times and

caused a black eye, cause me to have a black eye under my right eye.” Off. Thompson

testified that he “had to use force * * * to get her to stop trying to punch me, and I

was able to take her to the ground.” After Off. Thompson got Safo on the ground, he

“put her in handcuffs without any other force being used.”
               According to Off. Thompson, while he was handcuffing Sims, he could

hear Safo, but he could not see her until after Sims was handcuffed. He did not know

at the time that Safo had a cell phone in her hand and may have been recording the

events unfolding.

               Off. Thompson’s body-cam video of the incident was played during

trial. After watching this video in court, Off. Thompson agreed that, while he was

attempting to handcuff Safo, he pulled her hood over her head. Specifically, Off.

Thompson testified as follows:

      I grabbed her arm which her phone was in because it was the closest
      arm to me. I was going to put them behind her back. She then turned
      and punched me with her right arm because the cell phone was in the
      left arm. She turned, punched me several times with the right arm * * *.
      And at that point, I guess, in the course of it, I pulled her hood over her
      head. I didn’t realize at the time that’s what I was doing.

      ***

      I think it kind of just kind of happened. There was a lot of flailing
      around going on, and then her hood just came over her head. That was
      not my intention to pull her hood over her head.

III. Law and Analysis

               Safo raises four assignments of error for our review, which we address

out of order for ease of discussion.

      I.    Trial Counsel was ineffective for failing to file a motion to
      suppress.

      II.   Trial Counsel was ineffective for failing to call Tenisha Safo as a
      witness on behalf of the defense.

      III. The verdict as to Count One (1) cannot be upheld because the
      evidence presented at trial did not prove her guilt beyond a reasonable
      doubt.
      IV. The verdict as to Count Two (2) cannot be upheld because the
      evidence presented at trial did not prove her guilt beyond a reasonable
      doubt.

      A. Sufficiency of the Evidence and Manifest Weight of the Evidence

              Safo’s third and fourth assignments of error challenge the sufficiency

and manifest weight of the evidence presented at the bench trial. “[A]n appellate

court’s function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of defendant’s guilt beyond

a reasonable doubt.” State v. Jenks, 

, 

 (1991).

“In essence, sufficiency is a test of adequacy. Whether the evidence is legally

sufficient to sustain a verdict is a question of law.” State v. Thompkins, 

, 

 (1997).

              A manifest weight of the evidence challenge “addresses the evidence’s

effect of inducing belief. * * * In other words, a reviewing court asks whose evidence

is more persuasive — the state’s or the defendant’s?” State v. Wilson, 

, 

, 

, ¶ 25. “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as the ‘thirteenth juror’ and disagrees with the

factfinder’s resolution of the conflicting testimony.” 

. Reversing

a conviction under a manifest weight theory “should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State

v. Martin, 

, 

 (1st Dist.1983).
            1. Assault of a Peace Officer

               Pursuant to R.C. 2903.13(A), “[n]o person shall knowingly cause or

attempt to cause physical harm to another * * *.” R.C. 2903.13(C)(5) states that “[i]f

the victim of the offense is a peace officer * * *, while in the performance of their

official duties, [the] assault is a felony of the fourth degree.”

               In the instant case, Off. Thompson’s testimony established that Safo

punched him in the face “multiple times” while he was on duty as a patrol officer,

causing him to have a black eye. The body-cam video played during trial is short

and chaotic, and it fails to show whether Safo punched Off. Thompson. However,

that conclusion is not inconsistent with Off. Thompson’s testimony. Ohio courts

have consistently held that the “testimony of a single witness, if believed by the

finder of fact, is sufficient to support a criminal conviction.” State v. Booker, 10th

Dist. Franklin No. 15AP-42, 

.

               Upon review, we find that the state presented sufficient evidence to

convict Safo of assaulting a police officer.         Furthermore, this evidence was

undisputed, and we find that Safo’s conviction is not against the manifest weight of

the evidence. Accordingly, Safo’s third assignment of error is overruled.

            2. Obstructing Official Business

               Pursuant to R.C. 2921.31(A), “[n]o person, without privilege to do so

and with purpose to prevent, obstruct, or delay the performance by a public official

of any authorized act within the public official’s official capacity, shall do any act that

hampers or impedes a public official in the performance of the public official’s lawful
duties.” R.C. 2921.31(B) states that “[i]f a violation of this section creates a risk of

physical harm to any person, obstructing official business is a felony of the fifth

degree.”

               Our review of the body-cam video played at trial shows that when Off.

Thompson was handcuffing Sims, he was on the ground in between Sims’s vehicle

and the vehicle that Sims crashed into. Headlights from cars travelling on the street

are seen throughout the incident. Safo, with a cell phone in her hand, is standing

over Off. Thompson’s right shoulder. Though Safo only comes into view when Off.

Thompson turns his body toward her, it is clear that she is screaming at him.

Further, Safo parked her car in the road, creating an additional traffic hazard while

Off. Thompson was effectuating the arrest of Sims. Safo refused to move her car,

despite Off. Thompson repeatedly ordering her to do so.

               Upon review, we find that Safo’s conduct, as testified to by Off.

Thompson and showed in his body-cam video, hampered or impeded him from

performing his duties that night. He told her multiple times to stay back and move

her car from the middle of the street while he was arresting Sims. It was a chaotic

and potentially dangerous situation, and she distracted him from performing his

job. This evidence is sufficient to support a conviction for obstructing official

business, and this is not a case where the evidence weighed so heavily in favor of

acquittal that the court lost its way as the factfinder in convicting Safo. Accordingly,

Safo’s fourth assignment of error is overruled.
      B. Ineffective Assistance of Counsel

               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,

, 

, 

 (1984). However, “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. The object

of an ineffectiveness claim is not to grade counsel’s performance.” 

. See

also State v. Bradley, 

, 

 (1989).

           1. Failure to File Motion to Suppress

               ‘“Failure to file a suppression motion does not constitute per se

ineffective assistance of counsel.’” State v. Madrigal, 

, 

 (2000), quoting Kimmelman v. Morrison, 

, 

, 

 (1986). “Rather, a trial counsel’s failure to file a motion to

suppress constitutes ineffective assistance of counsel only if there is a reasonable

probability that, had the motion to suppress been filed, it would have been granted

and that suppression of the challenged evidence would have affected the outcome of

the case.” State v. Antio, 8th Dist. Cuyahoga No. 110658, 

.

               Upon review of Off. Thompson’s testimony at trial, which was

substantially consistent with his body-cam video of the incident, we find that Safo

has failed to show a reasonable probability that a motion to suppress, had one been

filed, would have been granted. As discussed in our analysis of Safo’s third and
fourth assignments of error, the evidence presented at trial showed that Safo

obstructed official business and assaulted a police officer. Nothing in the record

suggests that Off. Thompson effected an illegal arrest of Safo, and we find that filing

a motion to suppress in this case would have been futile. Accordingly, Safo’s first

assignment of error is overruled.

            2. Failure to Call Tenisha Safo as a Witness

               “Generally, counsel’s decision whether to call a witness falls within

the rubric of trial strategy and will not be second guessed by a reviewing court.”

State v. Treesh, 

, 

 (2001). This court has held

that “the mere failure to call witnesses does not render counsel’s assistance

ineffective absent a showing of prejudice.” State v. Scruggs, 8th Dist. Cuyahoga

No. 107860, 

. Furthermore, it well-established that the failure

to call a witness for a trial “is not a substantial violation of defense counsel’s essential

duty to his client in the absence of any showing that the testimony * * * would have

assisted the defense to the indictment.” State v. Reese, 

, 

 (1st Dist.1982).

               In the instant case, Safo argues that trial counsel was ineffective for

failing to call Tenisha Safo (“Tenisha”) as a defense witness. According to Safo,

Tenisha would have testified that “she was on the phone with her daughter, that they

were concerned that * * * Sims would not get home safely, that Officer Thompson

was rude to her about * * * Safo’s pregnancy, that the following day other officers

apologized for Officer Thompson’s behavior, and lastly that he did not have a black
eye.” Safo does not offer an affidavit or other sworn testimony attesting to what she

opines Tenisha would have said had she been called as a witness. Our review of the

record shows that Tenisha, who is Safo and Sims’s mother, spoke at Safo’s

sentencing hearing and said these very things. However, statements made during

the penalty phase of a trial, after the defendant’s guilt has been established, are not

sworn testimony. See State v. Williams, 7th Dist. Mahoning No. 11 MA 185, 2014-

Ohio-1015 (“Appellant’s opportunity at sentencing to make a statement concerning

his remorse or to raise mitigating factors relevant to sentencing decisions is not

sworn testimony.”).

               Moreover, the information Safo maintains Tenisha would have

provided had she been called to testify at trial would not have negated the testimony

provided by Off. Thompson or the body-cam video. Tenisha was not physically

present on the night in question, and much of her proposed testimony has no

bearing on any of the elements of either offense of which Safo was convicted. Upon

review, we find that Safo has failed to show that Tenisha’s presumptive testimony

would have assisted her defense. Accordingly, Safo’s second assignment of error is

overruled.

               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
convictions 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

SEAN C. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR