[Cite as State v. Miller, 2013-Ohio-5621.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
JAMES D. MILLER
Defendant-Appellant
Appellate Case No. 25504
Trial Court Case No. 2012-CR-1553
(Criminal Appeal from
(Common Pleas Court)
...........
OPINION
Rendered on the 20th day of December, 2013.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 209, Kettering,
Ohio 45429
Attorney for Defendant-Appellant
.............
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WELBAUM, J.
{¶ 1} Defendant-Appellant, James D. Miller, appeals from his conviction for Felony
Murder and the predicate offense of Felonious Assault following a jury trial. Miller contends
that the trial court erred in failing to instruct the jury on the lesser included offenses of Reckless
Homicide and Involuntary Manslaughter. He also claims that the trial court erred in admitting a
prior inconsistent statement to the jury as substantive evidence. Additionally, he argues that his
conviction was against the manifest weight of the evidence, because there was insufficient
evidence to prove that he committed the predicate offense of Felonious Assault.
{¶ 2} We conclude that the trial court did not err in failing to instruct the jury on the
lesser included offenses of Reckless Homicide and Involuntary Manslaughter. Based on the
evidence in the record, no reasonable jury could have found Miller not guilty of the greater
offense of Felony Murder, but guilty of the lesser included offense of Reckless Homicide and/or
Involuntary Manslaughter. We further conclude that the trial court erred in admitting a prior
inconsistent statement to the jury, but that such error was harmless and did not affect the outcome
of trial. Additionally, Miller’s conviction for Felonious Assault was not against the manifest
weight of the evidence. The evidence establishes that Miller knowingly caused physical harm to
the victim by means of a deadly weapon. Accordingly, there was sufficient evidence to convict
Miller of Felonious Assault as the predicate offense to Felony Murder.
I. Facts and Course of Proceedings
{¶ 3} On June 11, 2012, James D. Miller was indicted on one count of Felony Murder
under R.C. 2903.02(B) as a proximate result of committing Felonious Assault. The indictment
also included a three-year firearm specification. Miller pled not guilty and a jury trial took place
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on October 15, 2012. The following information was elicited at trial.
{¶ 4} On April 9, 2012, Renaldo “Woody” Woodbury was shot in the head and killed
on the front porch of a duplex located at 47/49 Forest Glen Avenue Dayton, Ohio. Renaldo
lived at 47 Forest Glen with his girlfriend and the mother of his child, Holly McReynolds.
Miller was Holly’s 17-year-old brother, and he had been living with Holly and Renaldo for
approximately three weeks. Holly and Miller’s mother, Denise Miller, and their uncle, Alger
Wilkins, were also living at 47 Forest Glen on a temporary basis.
{¶ 5} On the morning of Renaldo’s shooting, Denise drove Miller to see his girlfriend,
Arielle Johnson. Denise dropped Miller off at Arielle’s apartment around 8:30 a.m. Miller
stayed at Arielle’s apartment until 1:00 p.m., and then went to visit a friend named Chicago, who
lived across the street from Arielle.
{¶ 6} After dropping Miller off at Arielle’s, Denise went searching for a job and a new
apartment. She returned to 47 Forest Glen around 4:00 or 5:00 p.m. When Denise returned,
Renaldo and Holly told her that they wanted Miller to move out, because they had a problem with
the friends he was inviting into their home. In response, Denise packed some of Miller’s
belongings, and called his cell phone to inform him that he was going to have to move.
{¶ 7} At 4:33 p.m., Arielle received a text message from Miller saying, “Can I get $2 or
some change, me and big bra are trying to get a box of bullets, I’ll be honest.” Trans. Vol. II
(Oct.16, 2012), p. 334, ln. 9-10. Shortly thereafter, Miller stopped by Arielle’s apartment and
she gave him a few dollars. At 8:56 p.m., Miller texted Arielle again saying, “I love you.
Whatever happens tonight, that will never change.” Id. at 338, ln. 3-4. Around 9:30 p.m.,
Miller sent a third text message to Arielle saying, “I’m about to do something very permanent.”
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Id. at 339, ln. 13-14. Arielle was on the phone and did not see Miller’s third text message right
away.
{¶ 8} Between 9:00 and 9:30 p.m., Denise picked Miller up at Chicago’s apartment and
drove him back to 47 Forest Glen. When Denise and Miller arrived at 47 Forest Glen, Renaldo
and Alger were sitting on the front porch smoking cigarettes. Denise testified that as she and
Miller approached the front porch of the duplex, Renaldo began speaking to Miller in an
aggressive tone and they started arguing. She said that Miller and Renaldo remained on opposite
sides of a rail that was located in the middle of the front porch. According to Denise, Miller and
Renaldo were moving around on the porch and Alger was trying to get in between them, but no
one made physical contact or fought.
{¶ 9} Denise testified that she was standing by a pillar on the porch when she heard a
gunshot and saw Renaldo collapse. She claimed that she never saw Miller pull out a gun or
shoot Renaldo. The State impeached her testimony at trial with a prior statement she had written
for police stating, “And out of nowhere, my son pulled a gun out and shot him.” Id. at 461, ln.
5-10. Denise also admitted that she told 911 her son shot Renaldo. Id. at 456, ln. 17-21.
{¶ 10} Alger Wilkins testified that he was standing in between Miller and Renaldo on
the front porch as they were arguing. He remembered that Renaldo was standing in front of 49
Forest Glen behind a rail that divided the front porch, and Miller was standing on the other side
of the rail in front of 47 Forest Glen. Alger claims that he did not touch Miller or Renaldo, and
that Miller and Renaldo did not engage in any physical contact with each other. According to
Alger, Renaldo never threatened Miller, but Miller said, “I’ll smoke you fool” to Renaldo. Id.
at 518, ln. 1-3.
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{¶ 11} After Miller threatened Renaldo, Alger saw Miller pull out a gun from his waist
and point it at Renaldo. Alger tried to get the gun from Miller, but Miller kept moving the gun
out of his way to keep him from reaching it. During this time, Alger observed that the hammer
of the gun had already been cocked. Alger claims he saw Renaldo’s hands come over his
shoulder toward Miller’s gun when the gun went off. Alger grabbed the gun from Miller’s
hands as it went off. After the gun fired, Alger followed Miller off the porch to chastise him
about having a gun. Alger did not realize that Renaldo had been shot until he heard Holly
scream and turned to see Renaldo lying on the porch. At that moment, he saw Miller run away
from 47 Forest Glen. Alger gave the gun to Denise and ran after Miller, but was unable to catch
him.
{¶ 12} Betty Asamoah, a neighbor who resides at 55 Forest Glen, observed the shooting
while standing outside her house. Betty testified that Holly, Denise, Alger, Renaldo, and Miller
were standing on the front porch of 47/49 Forest Glen while Renaldo and Miller were arguing.
Specifically, Betty heard Renaldo tell Miller to leave his house, get off the porch, and to stop
being disrespectful. Thereafter, she heard Holly tell Miller to follow Renaldo’s instructions, but
Miller said he was not going anywhere. Betty then heard Miller tell Renaldo, “I’ll shoot your
ass” or “Shut the f**k up before I shoot your ass.” Id. at 273, ln. 12; 297, ln. 18-25. After his
threat, Betty saw Miller point a gun straight at Renaldo and shoot him. Betty testified that
Renaldo never came at Miller and that the two never engaged in a physical struggle. In fact,
Betty said that Miller and Renaldo were not close enough to touch each other. According to
Betty, there was no movement on the porch and Alger never attempted to separate them. She
said Renaldo and Miller simply stood on the porch and yelled back and forth while everyone
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watched.
{¶ 13} Betty, who is a registered nurse, ran to the porch to provide medical assistance to
Renaldo after he was shot. By the time she reached the porch Miller had run away. In order to
attempt to stop Renaldo’s bleeding, Betty placed a blanket over Renaldo’s face where he had
been shot. Betty detected a slight pulse at first, but Renaldo eventually died in her arms.
{¶ 14} Around 10:00 p.m., Arielle Johnson saw Miller’s third text message saying that
he was going to do “something very permanent.” The message worried her, so she called Miller
on his cell phone. When Miller picked up the phone, the first thing Arielle heard was a female
scream and a male yelling “Get back here.” Id. at 340, ln. 21-25. She then heard Miller say, “I
shot him.” Id. at 341, ln. 21-25. Arielle asked what he meant, and Miller said, “I shot Woody.”
Id. at 324, ln. 13-16. Miller asked Arielle to hold on the line, and as she was holding, she heard
wind and running for about three minutes. When Miller got back on the line he said, “I’ll call
you back. I love you.” Id. at 343, ln. 12-13. Miller then hung up and Arielle never heard back
from him.
{¶ 15} After hearing a physical description of Miller over the radio, Officers Walter
Evans and Kyle Dickerson of the Dayton Police Department spotted Miller by the door of a Taco
Bell in the 4200 block of North Main Street. As they pulled to the curb and exited the police
cruiser, Officer Dickerson motioned for Miller to stop. Instead of stopping, Miller ran, and
Officer Dickerson pursued him on foot. The officer eventually caught Miller and arrested him.
{¶ 16} Meanwhile, Officer Craig Stiver of the Dayton Police Department recovered the
gun that killed Renaldo from the front porch of 47 Forest Glen. The gun was identified as a
Ruger .22 caliber pistol. It is a single action gun that requires the shooter to manually cock the
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hammer before firing. The gun was found with five live bullets and one spent casing.
{¶ 17} Russell Uptegrove, a forensic pathologist, performed an autopsy on Renaldo’s
body, and testified that the cause of death was a “distant penetrating gunshot wound to the head.”
Trans. Vol. I. (Oct. 15, 2012), p. 232, ln. 22-23. Specifically, Renaldo was shot just beneath his
right eye. Uptegrove stated that there was no trauma on Renaldo’s hands, which indicates that
there was no physical altercation or struggle prior to death. Based on the gunshot wound,
Uptegrove stated that the shooter was at least 18 to 24 inches away from Renaldo.
{¶ 18} At the close of trial, Miller objected to the admission of the prior written
statement used to impeach Denise Miller. The trial court overruled the objection on grounds that
it was a properly authenticated prior inconsistent statement. Miller also requested that the lesser
included offenses of Reckless Homicide and Involuntary Manslaughter, with the underlying
offense of Aggravated Menacing, be included in the jury instructions. The trial court found that
there was no evidence to support the lesser included offenses, and denied Miller’s request.
{¶ 19} After considering all the evidence, the jury found Miller guilty of Felony Murder
as a proximate result of committing Felonious Assault. The jury also concluded that Miller
possessed a firearm while committing the offense. At sentencing, Miller received a prison term
of fifteen years to life for the Felony Murder conviction and three consecutive years for the
firearm specification.
{¶ 20} Miller now appeals from his conviction.
II. Did the Trial Court Err in Failing to Instruct
the Jury on Lesser Included Offenses?
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{¶ 21} Miller’s First Assignment of Error is as follows:
The Court Erred When it Denied the Appellant’s Request for Jury
Instructions on Lesser Included Offenses.
{¶ 22} Under this assignment of error, Miller argues that the trial court erred in failing to
instruct the jury on the lesser included offenses of Reckless Homicide and Involuntary
Manslaughter with the predicate offense of Aggravated Menacing.
{¶ 23} “The question of whether a particular offense should be submitted to the finder of
fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted.) State v.
Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6. “The first tier * * * is a
purely legal question, wherein we determine whether one offense is generally a lesser included
offense of the charged offense.” Id., citing State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d
311 (1987). “The second tier looks to the evidence in a particular case and determines whether
‘ “ a jury could reasonably find the defendant not guilty of the charged offense, but could convict
the defendant of the lesser included offense.” ’ ” Id., quoting State v. Evans, 122 Ohio St.3d
381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13, quoting City of Shaker Hts. v. Mosely, 113 Ohio
St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11.
{¶ 24} “[A] charge on the lesser offense is required ‘only where the evidence presented
at trial would reasonably support both an acquittal of the crime charged and a conviction upon the
lesser included offense.’ ” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d
242, ¶ 192, quoting State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two
of the syllabus.
{¶ 25} “The trial court must view the evidence in the light most favorable to the
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defendant when deciding whether to instruct the jury on a lesser included offense.” Id., citing
State v. Campbell, 69 Ohio St.3d 38, 47–48, 630 N.E.2d 339 (1994). “The
lesser-included-offense instruction is not warranted every time ‘some evidence’ is presented to
support the lesser offense.” Id., citing State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272
(1992). “Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the
greater offense and find the defendant guilty on a lesser included (or inferior degree) offense.’
(Emphasis sic.)” Id., quoting Shane at 632–633.
{¶ 26} In this case, the first tier of the analysis is not in dispute, because the State
concedes that Involuntary Manslaughter and Reckless Homicide are lesser included offenses of
Murder. See Thomas at 216 (“Involuntary manslaughter * * * is a lesser included offense of
murder * * *”); Trimble at ¶ 191 (“reckless homicide is a lesser included offense of felony
murder”).
{¶ 27} With respect to the second tier of the analysis, we must determine whether a jury
could reasonably find Miller not guilty of the greater offense of Felony Murder based on the
evidence presented at trial. Felony Murder is codified in R.C. 2903.02(B), which states, “No
person shall cause the death of another as a proximate result of the offender’s committing or
attempting to commit an offense of violence that is a felony of the first or second degree * * *.”
{¶ 28} The predicate offense of violence to Miller’s Felony-Murder charge is Felonious
Assault, a second degree felony. R.C. 2903.11(D)(1)(a). Felonious Assault occurs when a
person “knowingly * * * cause[s] or attempt[s] to cause physical harm to another * * * by means
of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2).
{¶ 29} “A person acts knowingly, regardless of his purpose, when he is aware that his
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conduct will probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.
2901.22(B)
{¶ 30} Miller contends that the evidence, when viewed in a light most favorable to him,
establishes that he did not “knowingly” cause physical harm to Renaldo. He claims that the jury
could have found that his gun discharged unintentionally when Renaldo and/or Alger tried to take
it from him. Miller also relies on Betty Asamoah’s written statement that Miller yelled, “Shut
the f**k up before I shoot your ass.” He claims that the phrasing of his threat indicates the
shooting was unintentional.
{¶ 31} The evidence cited by Miller is insufficient to allow the jury to reasonably reject
the greater offense of Felony Murder with the predicate offense of Felonious Assault. The
record establishes that approximately five hours before shooting Renaldo, Miller sent a text
message to his girlfriend requesting money to buy bullets. An hour before the shooting, Miller
sent her a second text message indicating that something was going to happen that night. Thirty
minutes later, Miller sent her a third text message saying that he was “about to do something very
permanent.” Immediately prior to the shooting, Miller directly commented on his intention to
shoot Renaldo and pointed his fully loaded gun directly at him. The hammer of the gun was
already cocked back and ready to fire. When Alger Wilkins attempted to grab the gun, Miller
moved out of his way and shot Renaldo. Every eyewitness who testified claimed that there was
no physical altercation or struggle between Miller, Renaldo, and Alger. Accordingly, the
evidence does not indicate that the gun discharged accidentally due to a struggle.
{¶ 32} Even when viewing the facts in a light most favorable to Miller, the text
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messages, Miller’s comments, and his action of loading and cocking the gun, indicate that Miller
was aware that his conduct would probably result in Renaldo being physically harmed.
Furthermore, the evidence demonstrates that it was Miller’s intention to shoot Renaldo, not just
threaten him.
{¶ 33} Based on the evidence in the record, no reasonable jury could have found Miller
not guilty of the greater offense of Felony Murder, but guilty of the lesser included offense of
Involuntary Manslaughter and/or Reckless Homicide. Accordingly, the trial court did not err in
failing to instruct the jury on the lesser included offenses.
{¶ 34} Miller’s First Assignment of Error is overruled.
III. Did the Trial Court Err in Allowing the Written Statement
of Denise Miller to Be Submitted to the Jury?
{¶ 35} Miller’s Second Assignment of Error is as follows:
The Court Erred When It Allowed the Written Statement of Denise Miller
to Go Back to the Jury.
{¶ 36} Under this assignment of error, Miller contends that the written statement of
Denise Miller should not have been submitted to the jury as substantive evidence, because it was
only used as a prior inconsistent statement to impeach her testimony.
{¶ 37} In State v. Dearmond, 179 Ohio App.3d 63, 2008-Ohio-5519, 900 N.E.2d 692
(2d Dist.), we stated the following regarding prior inconsistent statements:
“It is the generally accepted view that a prior inconsistent statement is only
admissible to impeach the declarant and should not be taken into evidence to
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prove the truth of the matter asserted. Ohio has long adhered to this general
principle. * * * [T]he Ohio Supreme Court has said that ‘ “when taken by surprise
by the adverse testimony of its own witness, * * * the state may interrogate such
witness concerning his prior inconsistent * * * statement * * * for the purpose of
refreshing the recollection of the witness, but not for the purpose of offering
substantive evidence against the accused.” ’ State v. Dick (1971), 27 Ohio St.2d
162, 165, 56 O.O.2d 101, 271 N.E.2d 797, 799 (quoting State v. Duffy (1938), 134
Ohio St. 16, 17, 11 O.O. 383, 15 N.E.2d 535, 536). Indeed, to allow prior
inconsistent statements to be considered for their truth would ‘allow men to be
convicted on unsworn testimony of witnesses—a practice which runs counter to
the notions of fairness on which our legal system is founded.’ Bridges v. Wixon
(194[5]), 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103.” State v. English,
Montgomery App. No. 21915, 2007-Ohio-5979, 2007 WL 3309637. Id. at ¶ 26.
{¶ 38} In this case, the State used Denise Miller’s prior inconsistent statement to
impeach her testimony that she did not see her son shoot Renaldo. The State was permitted to
use her statement solely for witness recollection and subsequent impeachment. The statement
was not admissible as substantive evidence. Accordingly, the trial court erred in submitting the
written statement to the jury during its deliberation.
{¶ 39} While the trial court erred in submitting the written statement to the jury, we
conclude that the error was harmless. “Error in the admission of evidence is harmless if there is
no reasonable possibility that the evidence may have contributed to the accused's conviction. In
order to hold the error harmless, the court must be able to declare a belief that the error was
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harmless beyond a reasonable doubt.” (Citations omitted.) State v. Bayless, 48 Ohio St.2d 73,
106, 357 N.E.2d 1035 (1976), vacated on other grounds, Bayless v. Ohio, 438 U.S. 911, 98 S.Ct.
3135, 57 L.Ed.2d 1155 (1978).
{¶ 40} Admitting the prior inconsistent statement to the jury was harmless error because
the statement is cumulative evidence of the fact that Miller shot Renaldo. All of the evidence
presented at trial establishes that Miller was the shooter. There is no evidence to the contrary.
Had the improper statement not been admitted, the jury would have still concluded that Miller
was the shooter based on all of the other evidence. As a result, the written statement did not
contribute to the conviction. Accordingly, the trial court’s error in submitting the statement to
the jury was harmless beyond a reasonable doubt.
{¶ 41} For the foregoing reasons, Miller’s Second Assignment of Error is overruled.
IV. Was the Appellant’s Conviction Against the
Manifest Weight of the Evidence?
{¶ 42} Miller’s Third Assignment of Error is as follows:
The Appellant’s Conviction Was Against the Manifest Weight of the
Evidence.
{¶ 43} Under this assignment of error, Miller contends that his Felony Murder
conviction was against the manifest weight of the evidence, because the evidence does not
establish that he committed the predicate offense of Felonious Assault. Specifically, Miller
claims that the evidence fails to prove that he knowingly caused physical harm to Renaldo.
{¶ 44} “When a conviction is challenged on appeal as being against the weight of the
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evidence, an appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in the
evidence, the trier of fact ‘clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.’ ” State v. Hill, 2d Dist. No.
25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). “A judgment should be reversed as being against the manifest weight of the evidence
‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 45} After weighing all of the evidence, reasonable inferences, and witness credibility,
we do not find that the jury lost its way and created a manifest miscarriage of justice when it
convicted Miller of Felony Murder with the predicate offense of Felonious Assault. Under the
First Assignment of Error, we already concluded that Miller’s various text messages, comments,
and preparation of the gun by loading it and cocking the hammer, establish that he knowingly
caused physical harm to Renaldo. Additionally, there is no evidence of a physical altercation or
struggle that would have led the jury to believe that the shooting was accidental. Therefore, this
is not an exceptional case in which the evidence weighs heavily against finding that Miller
committed the predicate offense of Felonious Assault.
{¶ 46} Miller’s Third Assignment of Error is overruled.
V. Was the Evidence Insufficient to Support
the Appellant’s Conviction?
{¶ 47} Miller’s Fourth Assignment of Error is as follows:
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The Evidence Was Insufficient to Support the Appellant’s Conviction.
{¶ 48} Under this assignment of error, Miller contends that there was insufficient
evidence to prove that he committed Felonious Assault as the predicate offense to Felony
Murder. “Although sufficiency and manifest weight are different legal concepts, manifest
weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is
supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.”
(Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11.
As a result, a determination that a conviction is supported by the weight of the evidence will
also be dispositive of the issue of sufficiency. State v. Roberts, 9th Dist. Lorain No.
96CA006462, 1997 WL 600669, * 2 (Sept. 17, 1997); State v. Braxton, 10th Dist. Franklin
No. 04AP-725, 2005-Ohio-2198, ¶ 15. Because we have already determined that the manifest
weight of the evidence establishes that Miller committed the predicate offense of Felonious
Assault for his Felony Murder charge, the evidence is also sufficient to support Miller’s
conviction.
{¶ 49} Miller’s Fourth Assignment of Error is overruled.
VI. Conclusion
{¶ 50} Having overruled Miller’s four assignments of error, we hereby affirm the
judgment of the trial court.
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FAIN, P.J., concurs.
HALL, J., concurring:
{¶ 51} I concur with the analysis and conclusions of my colleagues. I write separately to
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address the introduction of defendant’s mother’s prior inconsistent written statement, “my son
pulled a gun out and shot him” (T. 461), after she denied seeing her son shoot Renaldo
Woodbury.
{¶ 52} On appeal the State argued, incorrectly in my view, that mother’s prior statement
was admissible under Evid.R. 801(D)(1)(c) as a statement of “identification of a person soon
after perceiving the person,” which is described as “not hearsay.” I do not believe this statement
was one of identification at all. Mother indicated her son was present on the porch where the
shooting occurred, and she clearly knew who her son was. The statement “my son pulled a gun
out and shot him” is about what her son did, not about his “identity.” Therefore, Evid. R.
801(D)(1)(c) does not apply. Moreover, at trial the State moved to admit the prior written
statement because “[w]e impeached her.” (T. 586). The State also argued it was used to refresh
her memory. There was no mention of Evid.R. 801(D)(1)(c).
{¶ 53} When a prior inconsistent statement is introduced, in most circumstances it may
be considered solely for evaluating the declarant’s credibility and not as substantive evidence.1
Although that nuance may be lost on many a juror, the better practice is to instruct the jury on the
limited purpose for admitting the evidence. Here, however, the defense did not request a limiting
instruction, which waives any potential error. State v. Grant, 67 Ohio St.3d 465, 472, 620 N.E.2d
50 (1993).
{¶ 54} Nevertheless, I agree that considering the overwhelming evidence against Miller,
there was no reasonable probability that admission of the prior inconsistent statement contributed
to his conviction. Accordingly, even assuming there was an error, it was harmless beyond
1
For exceptions, see Evid.R. 607 and Evid.R. 801(D)(1)(a) and (D)(2).
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reasonable doubt.
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Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
William O. Cass, Jr.
Hon. Dennis J. Adkins