FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF
SUMMIT, OHIO CASE No. 2016 CRB 2074
ZEBER, pro se, Appellant.
GREGORY MARC WARD, Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO JUDGE.
Appellant, Nathan W. Zeber, appeals from his conviction in
the Stow Municipal Court. We affirm.
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.
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
Mr. Zeber now appeals from his conviction and raises one
assignment of error for this Court's review.
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.
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
This Court is cognizant of the fact that Mr. Zeber has
proceeded with his appeal and filed his merit brief pro se.
As to ...