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State v. Zeber

Court of Appeals of Ohio, Ninth District, Summit

December 13, 2017

STATE OF OHIO Appellee
v.
NATHAN ZEBER Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 2016 CRB 2074

          NATHAN ZEBER, pro se, Appellant.

          GREGORY MARC WARD, Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE.

         {¶1} Appellant, Nathan W. Zeber, appeals from his conviction in the Stow Municipal Court. We affirm.

         I.

         {¶2} On a cold, snowy morning in January of 2015, police responded to a 911 call regarding an unconscious female who had possibly overdosed. Officer Joel Moledor was first to arrive at the scene and observed Mr. Zeber dragging an unconscious and naked female by her legs to a severely damaged and seemingly disabled vehicle on the side of the road. The officer recognized the female ("N.C") and knew that she was associated with J.G., who lived nearby on Underwood Street. Another officer arrived and they, along with Mr. Zeber, provided medical attention to N.C. before she was soon taken by ambulance to the hospital. The officers both noticed heel marks and drag marks through the snow-covered asphalt leading from N.C. toward Underwood Street. N.C. later admitted to police at the hospital that she was in a motor vehicle accident with the owner of the vehicle and also went to J.G.'s house. She admitted to using heroin and stated that the last thing she remembered was "making out" with J.G. before she later woke up in the ambulance. She had recent injuries on her back that were consistent with being dragged on a street.

         {¶3} Mr. Zeber was charged with assault, a misdemeanor of the first degree. At his bench trial, Mr. Zeber testified that he did not drag N.C. to the vehicle, but that J.G. dragged her instead. He claimed that J.G. made the 911 call and falsely used Mr. Zeber's name during the call. When asked on cross-examination if he remembered talking to the 911 dispatcher, Mr. Zeber testified, "I really don't, if I did." (Emphasis added.) When questioned as to why he could recall some facts from that night, but not others, he testified, "I'm not one hundred percent sure I remember when I called the police, I'm not." (Emphasis added.) The trial court ultimately found Mr. Zeber guilty of assault and sentenced him to 180 days in jail and a $1, 000.00 fine. The jail time and $850.00 of the fine were suspended, and Mr. Zeber was placed on 12 months of community control.

         {¶4} Mr. Zeber now appeals from his conviction and raises one assignment of error for this Court's review.

         II.

         ASSIGNMENT OF ERROR

APPELLANT'S CONVICTION FOR ASSAULT, MISDEMEANOR OF THE 1ST DEGREE, WAS BASED AT LEAST IN PART UPON EVIDENCE WHICH DEFENDANT'S COUNSEL FAILED TO SHARE WITH DEFENDANT PRIOR TO THE TRIAL PROCEEDINGS. IF THIS EVIDENCE HAD BEEN SHARED WITH DEFENDANT PRIOR TO THE TRIAL, THE RESULTS OF THAT PROCEEDING WOULD HAVE BEEN DIFFERENT, AS SAID EVIDENCE COULD FAIRLY EASILY HAVE BEEN PROVEN FALSE BY A COMPETENT DEFENSE ATTORNEY. THEREFORE, DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE DECISION OF THE TRIAL JUDGE WAS INFLUENECED BY ERRONEOUS EVIDENCE SUBMITTED BY THE PROSECUTING ATTORNEY AND WHICH THE DEFENSE WAS NOT PROPERLY PREPARED TO PROVE FALSE. * * * IN ADDITION, DEFENDANT'S WRITTEN STATEMENT IN THE POLICE RECORD SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE AS DEFENDANT WAS NOT UNDER SUSPICION AT THE TIME OF HIS STATEMENT, AND THEREFORE WAS NOT ADVISED OF HIS RIGHT TO AN ATTORNEY AND OF HIS RIGHT TO REMAIN SILENT.

         {¶5} In his sole assignment of error, Mr. Zeber claims that he received ineffective assistance of counsel when his trial counsel failed to share evidence with him prior to trial and failed to object to that same evidence at trial. He also claims that the written statement he provided to police should have been excluded from evidence because he "was not under suspicion at the time of his statement, and therefore was not advised of his right to an attorney and of his right to remain silent." We disagree with both propositions.

         {¶6} This Court is cognizant of the fact that Mr. Zeber has proceeded with his appeal and filed his merit brief pro se. As to ...


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