[Cite as State v. Jacobs, 2013-Ohio-1502.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 11CA26
:
vs. :
: DECISION AND JUDGMENT
JIMMIE E. JACOBS, : ENTRY
:
Defendant-Appellant. : RELEASED: 03/28/13
_____________________________________________________________
APPEARANCES:
William R. Gallagher, Arenstein and Gallagher, Cincinnati, Ohio, for
Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Appellant, Jimmie Jacobs, appeals the conviction and sentence
entered against him by the Highland County Court of Common Pleas after a
jury found him guilty of aggravated burglary and felonious assault, along
with two firearm specifications. On appeal, Appellant contends that 1) the
trial court erred in admitting into evidence his statements made after he had
invoked his right to counsel; 2) the trial court erred in limiting his cross
examination of the complaining witness thereby denying him his
constitutional right of confrontation; 3) the trial court erred in refusing to
Highland App. No. 11CA26 2
permit a witness to testify to his opinion as to truthfulness of a government
witness thus depriving defendant of his right to a fair trial and compulsory
process; 4) the trial court erred by refusing to admit evidence of a witness’s
drug use and mental illness thus depriving defendant of his right to a fair
trial and compulsory process; 5) the trial court erred in entering judgments
of conviction and sentences on both felonious assault and aggravated
burglary in this case as they are allied offenses in violation of R.C. 2941.25
and the double jeopardy clause prohibitions against multiple punishments; 6)
the trial court erred in entering consecutive sentences on the gun
specifications from a single transaction.
{¶2}With regard to Appellant’s first assignment of error, we conclude
Appellant knowingly and intelligently waived his rights when he re-initiated
conversation with law enforcement. As such, the trial court did not err in
denying Appellant’s motion to suppress, nor did it err in admitting his
statements into evidence at trial. Thus, Appellant’s first assignment of error
is overruled.
{¶3}As to Appellant’s second and fourth assignments of error,
because we find no abuse of discretion on the part of the trial court in
excluding the evidence at issue, we find no merit to these assignments of
error and they are both overruled. Likewise, as to Appellant’s third
Highland App. No. 11CA26 3
assignment of error, we conclude that the officer’s proffered testimony was
an impermissible attempt to introduce character evidence via extrinsic
evidence, which is barred by Evid.R. 404 and 405, and which did not meet
the requirements for admission under Evid.R. 608(B). Thus, we cannot
conclude that the trial court erred in excluding this testimony at trial. As
such, Appellant’s third assignment of error is overruled.
{¶4}With regard to Appellant’s fifth assignment of error, we have
concluded that aggravated burglary and felonious assault are allied offenses
of similar import which should have merged for purposes of sentencing. As
such, this matter is remanded for resentencing, at which the State must elect
which offense it wishes to proceed upon for sentencing and conviction.
Therefore, Appellant’s fifth assignment of error is sustained. Finally, in
light of our finding that aggravated burglary and felonious assault are allied
offenses of similar import, and as such that Appellant could only be
convicted for one of the offenses, the trial court erred in imposing
consecutive three year sentences for each of Appellant’s firearm
specifications, under R.C. 2929.14(D)(1)(g). Accordingly, Appellant’s sixth
assignment of error is sustained and this matter is remanded for resentencing
with respect to the imposition of the firearm specification.
Highland App. No. 11CA26 4
{¶5}In light of the foregoing, the decision of the trial court convicting
and sentencing Appellant for both aggravated burglary and felonious assault,
is reversed, and this matter is remanded for resentencing.
FACTS
{¶6}On December 15, 2010, Appellant, Jimmie Jacobs, was arrested
in connection with the shooting of victim, Jonathan Harris, at Harris’
apartment located in the back of J&J Automotive in Highland County, Ohio.
Upon being questioned by Patrolman Jeff Murphy and Detective Ron Priest
with the Hillsboro Police Department while in an interview room at the
Highland County Justice Center, Appellant confessed to having entered the
victim’s residence and shooting him with a .357 chrome revolver.1
{¶7}As a result, on March 1, 2011, Appellant was indicted on
attempted murder, in violation of R.C. 2923.02(A) and 2903.02(B),
felonious assault, a second degree felony in violation of R.C. 2903.11(A)(2),
and aggravated burglary, a first degree felony in violation of R.C.
2911.11(A)(1). Additionally, Appellant was charged with firearm
specifications pursuant to R.C. 2941.145 on each charge. Appellant pled not
guilty to the charges and the matter proceeded to trial.
1
The video and audio recording system in the interview room was not activated during the interview,
unbeknownst to the investigating officers. As such, this information comes from testimony of the officers,
based upon notes they made soon after the interview took place.
Highland App. No. 11CA26 5
{¶8}Several pre-trial motions were filed, including a motion to
suppress by the defense and a motion in limine by the State. The trial court
overruled the defense’s motion to suppress, which sought suppression of the
statements made by Appellant during his interview with Murphy and Priest
on the night of the shooting. The trial court, however, granted the State’s
motion in limine. In particular, the trial court ruled that information
involving a loan made between Appellant and victim was to be limited, and
that there was to be no testimony or evidence presented as to how the victim
used the money. The trial court further ruled that the defense could not offer
testimony of a Xenia police officer related to a prior incident with the
victim.
{¶9}The matter was tried to a jury on August 31, and September 1,
2011. The State presented multiple witnesses in support of its case. Of
importance, the victim, Jonathan Harris, testified that Appellant, a neighbor
of Harris’, entered Harris’ residence located in the back of J&J Automotive
on the evening of December 15, 2010. Harris testified that Appellant had a
gun in his hand, stated he was going to kill Harris, put the gun to his head
and then pulled the trigger. Mark Puckett, a neighbor who knows both
Harris and Appellant, testified that he was on the phone with Harris when
Appellant entered the residence and that he heard Harris call Appellant by
Highland App. No. 11CA26 6
name and then heard two shots. Further, Brian Holbrook, an employee of
J&J Automotive, testified that he saw Appellant enter the residence that
evening as Holbrook was leaving. He further testified that upon returning
not long after, he found Harris bloody and calling for help, and that he called
911.
{¶10}Patrolman Jeff Murphy and Detective Ron Priest, both with the
Hillsboro Police Department, testified regarding their interview of Appellant
at the Highland County Justice Center on the night of the shooting. Both
men essentially testified that Appellant stated that he had an issue with the
victim over money he had loaned him. They further testified that Appellant
stated that he went to the victim’s apartment and shot him with a .357
chrome revolver.
{¶11}Finally, the State presented the testimony of Heather Williams
and Max Larijani, employed at BCI&I. Larijani., who was qualified as an
expert in gunshot residue analysis, testified that there was gunshot primer
residue identified on samples taken from Appellant’s left back hand and the
palm of his right hand. Williams, who was qualified as an expert in
bullet/projectile analysis, testified that the evidence she tested indicated the
bullet fired had come from a .380 auto caliber or greater. She further
testified that a .357 caliber is greater than a .380 caliber.
Highland App. No. 11CA26 7
{¶12}Additionally, the defense proffered one witness and presented
three, including Appellant himself. Appellant denied having confessed to
shooting Harris during the interview with law enforcement. Instead,
Appellant testified that he simply went to Harris’ apartment to confront him
in response to Harris making a threat against his wife. He testified that he
took a cane with him, which he used to walk. He further testified that he
entered Harris’ apartment after knocking and being told to come in. He
testified that Harris was on the phone with Mark Puckett and that while he
was still on the phone, Appellant leaned in close in order to be as threatening
as possible and to tell him that he could not make threats against his wife.
He further testified that when Harris reached for something behind his back,
Appellant hit Harris’ hand with his cane, that they both fell down and that he
then heard one shot. Finally, he testified that he left and went home because
he was frightened, and that he did not call the police.
{¶13}After hearing the evidence, the jury found Appellant guilty of
aggravated burglary and felonious assault. As such, the attempted murder
charge was nolled and dismissed, and the trial court sentenced Appellant to
eight years on each count, as well as three years on each firearm
specification, all to be served consecutively for a total prison term of twenty-
Highland App. No. 11CA26 8
two years. It is from this judgment and sentence that Appellant now brings
his timely appeal, assigning the following errors for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE
STATEMENTS OF JACOBS AFTER HE HAD INVOKED HIS
RIGHT TO COUNSEL WHICH VIOLATES HIS RIGHTS
GUARANTEED HIM BY THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
AND ARTICLE ONE OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED IN LIMITING DEFENDANT’S
CROSS EXAMINATION OF THE COMPLAINING WITNESS
THEREBY DENYING HIM HIS CONSTITUTIONAL RIGHT OF
CONFRONTATION AS GUARANTEED BY THE OHIO AND
UNITED STATES CONSTITUTIONS.
III. THE TRIAL COURT ERRED IN REFUSING TO PERMIT A
WITNESS TO TESTIFY TO HIS OPINION AS TO
TRUTHFULNESS OF A GOVERNMENT WITNESS THUS
DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL
AND COMPULSORY PROCESS AS GUARANTEED BY THE
OHIO AND FEDERAL CONSTITUTIONS.
IV. TRIAL COURT ERRED BY REFUSING TO ADMIT EVIDENCE
OF A WITNESS’S DRUG USE AND MENTAL ILLNESS THUS
DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR [SIC]
AND A COMPULSORY PROCESS AS GUARANTEED BY THE
OHIO AND UNITED STATES CONSTITUTIONS.
V. THE TRIAL COURT ERRED IN ENTERING JUDGEMENTS [SIC]
OF CONVICTION AND SENTENCES ON BOTH FELONIOUS
ASSAULT AND AGGRAVATED BURGLARY IN THIS CASE AS
THEY ARE ALLIED OFFENSES IN VIOLATION OF ORC
2941.25 AND THE DOUBLE JEOPARDY CLAUSE
PROHIBITIONS AGAINST MULTIPLE PUNISHMENTS SET
FORTH IN OHIO STATE AND FEDERAL CONSTITUTION [SIC].
Highland App. No. 11CA26 9
VI. THE TRIAL COURT ERRED IN ENTERING CONSECUTIVE
SENTENCES ON THE GUN SPECIFICATIONS FROM A SINGLE
TRANSACTION.”
ASSIGNMENT OF ERROR I
{¶14}In his first assignment of error, Appellant contends that the trial
court erred in admitting into evidence statements that he made after he had
invoked his right to counsel. Appellant essentially argues that the trial court
erred in denying his pre-trial motion to suppress, and as such, allowing his
confession to be admitted at trial. Appellant further contends that the issue
presented is whether the police must stop asking questions beyond booking
questions once an arrestee requests counsel. The State responds by arguing
that Appellant initiated the discussion which led to his confession, thereby
waiving his previously invoked right to counsel and right to remain silent.
{¶15} “Appellate review of a motion to suppress presents a mixed
question of law and fact. When considering a motion to suppress, the trial
court assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses.” State v.
Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; citing
State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
“Consequently, an appellate court must accept the trial court's findings of
fact if they are supported by competent, credible evidence.” Id., citing State
Highland App. No. 11CA26 10
v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts
as true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the
applicable legal standard.” Burnside at ¶ 8; citing State v. McNamara, 124
Ohio App.3d 706, 707 N.E.2d 539 (4th Dist. 1997). See, also, State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100.
Preliminarily, “[w]here factual issues are involved in determining a motion,
the court shall state its essential findings on the record.” Crim.R. 12(F).
{¶16}Prior to initiating a custodial interrogation, law enforcement
must “inform an accused ‘that he has the right to remain silent, that anything
he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.’ ” State v. Ulery,
4th Dist. No. 07CA28, 2008-Ohio-2452, ¶ 7; quoting Miranda v. Arizona,
384 U.S. 436, 479, 86 S.Ct. 1602 (1966). Neither party in this case argues
that Appellant was not subject to a custodial interrogation or that there was
no need to have given him the Miranda warnings. Thus, no further analysis
is required on this issue.
{¶17}To use a statement made by the accused during a custodial
interrogation, the prosecution must show: “(1) the accused, prior to any
Highland App. No. 11CA26 11
interrogation, was given the Miranda warnings; (2) at the receipt of the
warnings, or thereafter, the accused made ‘an express statement’ that he
desired to waive his Miranda constitutional rights; (3) the accused effected a
voluntary, knowing, and intelligent waiver of those rights.” State v.
Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976) (overruled on other
grounds), citing Miranda. However, contrary to the second prong in
Edwards, the Supreme Court recently held that the prosecution “does not
need to show that a waiver of Miranda rights was express. An ‘implicit
waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect's
statement into evidence.” Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct.
2250, 2261 (2010) (Citation omitted). “Where the prosecution shows that a
Miranda warning was given and that it was understood by the accused, an
accused's uncoerced statement establishes an implied waiver of the right to
remain silent.” Id. at 2262. That is because “the law can presume that an
individual who, with a full understanding of his or her rights, acts in a
manner inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.” Id.
{¶18}When dealing with a claim that law enforcement continued to
interrogate the accused after he invoked his right to counsel, the first
question is “whether the accused actually invoked his right to counsel.”
Highland App. No. 11CA26 12
Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490 (1984). “It is fundamental
that once a suspect invokes his right to counsel, all interrogation must
cease.” State v. Colquitt, 188 Ohio App.3d 509, 2010-Ohio-2210, 936
N.E.2d 76, ¶ 12, citing State v. Turvey, 84 Ohio App.3d 724, 732, 618
N.E.2d 214 (4th Dist. 1992); State v. Jobe, 6th Dist. No. L-07-1413, 2009-
Ohio-4066, ¶ 67. “Invocation of the Miranda right to counsel ‘requires, at a
minimum, some statement that can reasonably be construed to be an
expression of a desire for the assistance of an attorney.’ ” Davis v. United
States, 512 U.S. 452, 459, 114 S.Ct. 2350 (1994); quoting McNeil v.
Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204 (1991). “But if a suspect
makes a reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have understood only
that the suspect might be invoking the right to counsel, [the Court's]
precedents do not require the cessation of questioning.” Id. “Rather, the
suspect must unambiguously request counsel.” Id. As the Supreme Court
observed, “ ‘a statement either is such an assertion of the right to counsel or
it is not.’ ” Id., quoting Smith v. Illinois (1984), 469 U.S. 91, 97-98, 105
S.Ct. 490 (1984).
{¶19}Second, if we find that the accused did invoke his right to
counsel, we “may admit his responses to further questioning only on finding
Highland App. No. 11CA26 13
that he (a) initiated further discussions with the police, and (b) knowingly
and intelligently waived the right he had invoked.” Smith v. Illinois at 95;
citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981). “[A]n
accused * * * having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the
police.” Edwards at 484-485; See, also, State v. Van Hook, 39 Ohio St.3d
256, 530 N.E.2d 883 (1988). “[I]nquiries or statements, by either an accused
or a police officer, relating to routine incidents of the custodial relationship,
will not generally ‘initiate’ a conversation in the sense in which that word
was used in Edwards [v. Arizona].” Oregon v. Bradshaw (1983), 462 U.S.
1039, 1045, 103 S.Ct. 2830 (1983). Though the Supreme Court declined to
fully define the term “initiate,” it did note that “a willingness and a desire for
a generalized discussion about the investigation * * * not merely a necessary
inquiry arising out of the incidents of the custodial relationship” was
sufficient to show initiation. Bradshaw at 1045–1046.
{¶20}Here, the trial court found and it is clear from the record that
Appellant was advised of his Miranda rights. This issue is not in dispute.
Further, the fact that Appellant made an unequivocal request for counsel
Highland App. No. 11CA26 14
upon being Mirandized is not in dispute. At issue, however, is whether
Appellant subsequently waived his right to counsel and to remain silent after
initially invoking those rights, by re-initiating conversation with the officers
regarding the incident.
{¶21}In the case sub judice, the trial court made explicit findings of
fact when it denied Appellant's motion to suppress. Specifically, the trial
court found that Appellant, while in custody and while being read his
Miranda rights, stated that he wanted the right to have an attorney present
during questioning. The trial court further found that upon being asked by
law enforcement for the name and contact information of his attorney, as
well as the name of anyone that might be available to care for the dogs that
were left at his residence, Appellant twice mentioned the “neighbors across
the street,” despite being told that they were not discussing the neighbors
across the street or the incident. The trial court also found that Appellant
then stated that the officers could ask him questions but he just might not
answer them, and that when asked if he wanted to answer questions, he
nodded his head affirmatively.
{¶22}Based upon these facts, the trial court determined that “there
was no interrogation of the Defendant after he invoked his right to counsel
until the Defendant himself stated they could ask him questions and he
Highland App. No. 11CA26 15
might answer them and he might not, and after being asked if that meant he
was willing to answer questions he nodded his head yes.” The trial court
further found that Appellant knowingly, intelligently, and voluntarily waived
his right to counsel and against self incrimination, and that to the extent
Appellant’s version of the conversation differed from that of the officers,
“the Court has determined that the officers’ version is more credible than
that of the Defendant.”
{¶23}After careful review, we conclude that the trial court’s findings
are supported by the record. After Appellant’s unequivocal invocation of
the right to counsel, Appellant re-initiated the interrogation by stating that
the officers could ask him questions, though he might not answer them, and
by nodding in the affirmative when he was then asked if he wanted to
answer questions. Thus, we conclude that the interrogation was free to
continue at that point, which it did, resulting in Appellant confessing to
entering the victim’s residence with a gun in order to confront him about a
loan that had not been repaid, and ultimately shooting the victim. This leads
to the conclusion that Appellant knowingly and intelligently waived his
rights when he spoke with law enforcement. Thus, the trial court was correct
to deny Appellant's motion to suppress, and we therefore overrule
Appellant's first assignment of error.
Highland App. No. 11CA26 16
ASSIGNMENT OF ERROR II AND IV
{¶24}We address Appellant’s second and fourth assignments of error
in conjunction with one another as they are interrelated. In his second
assignment of error, Appellant contends that the trial court erred in limiting
his cross examination of the victim, which he asserts denied him his
constitutional right of confrontation as guaranteed by the Ohio and United
States Constitutions. Specifically, Appellant questions whether a cross
examiner is entitled to challenge a negative response with contradicting
evidence when a witness denies mental illness or drug abuse. In his fourth
assignment of error, Appellant contends that the trial court erred by refusing
to admit evidence of the victim’s drug use and mental illness, thus depriving
Appellant of his right to a fair trial and compulsory process. Under this
assignment of error, Appellant questions whether it is error to prevent the
introduction of evidence contradicting a witness’s denial of drug use and
mental illness.
{¶25}In response to Appellant’s second and fourth assignments of
error, the State contends that the trial court was correct in adhering to its
earlier ruling on a motion in limine and in limiting the cross examination of
the victim to those things which were relevant to the crime. Further, the
State argues that Appellant’s trial counsel did not possess, nor actually
Highland App. No. 11CA26 17
attempt to admit any extrinsic evidence, and that even if the exclusion of
such alleged evidence was in error, it was harmless error in light of the
overwhelming evidence of Appellant’s guilt, specifically, Appellant’s
confession.
{¶26} “A trial court has broad discretion in the admission or exclusion
of evidence, and so long as such discretion is exercised in line with the rules
of procedure and evidence, its judgment will not be reversed absent a clear
showing of an abuse of discretion with attendant material prejudice to
defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921
N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App.3d 825,
2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist).
{¶27}Abuse of discretion is more than an error of law or judgment;
rather, it implies that the court's attitude is unreasonable, arbitrary or
unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796,
762 N.E.2d 940; State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). When an appellate court applies this standard, it can not substitute its
judgment for that of the trial court. State v. Jeffers, 4th Dist. No. 08CA7,
2009-Ohio-1672, ¶ 12; In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566
N.E.2d 1181 (1991); citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559
N.E.2d 1301 (1990).
Highland App. No. 11CA26 18
{¶28}In these assignments of error, which we address together,
Appellant contends that he should have been permitted to impeach the
victim’s trial testimony stating that he had not used cocaine on the day of the
shooting, and had not suffered from depression or psychotic episodes prior
to the shooting. Appellant argues that when the victim denied these
allegations, he should have been permitted to impeach the victim by
introducing extrinsic evidence in the form of medical records and deposition
testimony, which Appellant claims contradicted the victim’s answers given
at trial.
{¶29}Appellant submits that the admission of such extrinsic evidence
was proper under Evid.R. 616(B), “Methods of impeachment,” which
permits a witness to be impeached either by examination or by extrinsic
evidence, when attempting to prove a sensory or mental defect with respect
to the capacity, ability, opportunity to observe, remember or relate.
However, the trial court more appropriately categorized the attempt to
introduce this evidence as “character assassination” of the victim, and
excluded the proffered testimony and evidence. For the following reasons,
we conclude that the trial court properly exercised its discretion in excluding
this evidence.
Highland App. No. 11CA26 19
{¶30}Evid.R. 404 provides that evidence of a witness’s character is
generally inadmissible. Evid.R. 405 provides that when admissible, inquiry
is allowable only into “relevant” specific instances of conduct and that proof
of specific instances of conduct may only be made “[i]n cases in which
character or a trait of character of a person is an essential element of a
charge.” More specifically, Evid.R. 404(A)(2) provides, with respect to
character of the victim, that “[e]vidence of a pertinent trait of character of
the victim” is admissible. (Emphasis added). Here, however, we find that
evidence of drug use or prior depression on the part of the victim has no
pertinence or relevance with regard to whether he was the victim of a
shooting, and as such, would not have been properly admitted as evidence
under these rules.
{¶31}Additionally, Evid.R. 608 governs evidence of character and
conduct of a witness and provides in (B) that “[s]pecific instances of conduct
of a witness, for the purpose of attacking or supporting the witness’s
character for truthfulness, other than conviction of a crime as provided in
Evid.R. 609, may not be proved by extrinsic evidence.” “ ‘Other than the
Evid.R. 609 exception for certain criminal convictions, a witness’s
credibility may not be impeached by extrinsic proof of special instances of
his conduct; such conduct may inquired into only by the intrinsic means of
Highland App. No. 11CA26 20
cross-examination within the guidelines set forth in Evid.R. 608(B).
Criminal activities not resulting in conviction cannot ordinarily form the
basis for an attack upon a witness’s credibility’ ” State v. Hurt, 2nd Dist. No.
20155, 2004-Ohio-4266, ¶ 11; citing State v. Skatzes, 2nd Dist. No. 15848,
2003-Ohio-516, ¶ 183.
{¶32} “ ‘Furthermore, the answers given in response to questions
about specific instances of conduct on cross-examination must be accepted
by the examiner with no further attempt to establish the conduct through
extrinsic evidence.’ ” State v. Reed, 110 Ohio App.3d 749, 754, 675 N.E.2d
77 (4th Dist. 1996); citing State v. Gardner, 59 Ohio St.2d 14, 19, 391
N.E.2d 337 (1979). Thus, we conclude that attempting attack the victim’s
character by pointing to specific prior conduct through the use of extrinsic
evidence in the form of medical records would be a prohibited method under
Evid.R. 608(B).
{¶33} Finally, Evid.R. 613 governs impeachment by self
contradiction. Because Appellant does not argue admission was proper
under this rule, we only address it superficially by simply noting that we
likewise conclude admission of the evidence at issue would be improper
under this rule as well. We primarily reach this conclusion based upon
Evid.R. 613(B)(2)’s requirement that the “subject matter of the statement”
Highland App. No. 11CA26 21
be a “fact that is of consequence to the determination of the action other than
the credibility of witness[.]” Here, we do not believe that the victim’s
credibility or character for truthfulness is a fact of consequence to the
determination of whether Appellant, by Appellant’s own admission, shot the
victim. Thus, we find Evid.R. 613 to be as equally inapplicable as Evid.R.
404, 405 and 608.
{¶34} In light of the foregoing, we find no abuse of discretion on the
part of the trial court in excluding the evidence at issue. As such, we cannot
conclude that Appellant was denied his constitutional rights of
confrontation, to compulsory process, and to a fair trial. Thus, we find no
merit to Appellants’ second and fourth assignments of error and therefore,
they are both overruled.
ASSIGNMENT OF ERROR III
{¶35} In his third assignment of error, Appellant contends that the
trial court erred in refusing to permit a witness to testify regarding his
opinion as to truthfulness of the victim, which Appellant claims deprived
him of his right to a fair trial and compulsory process as guaranteed by the
Ohio and Federal Constitutions. Specifically, Appellant questions whether a
witness should have been barred from testifying regarding his opinion as to
the truthfulness of the victim because of the witness’s status as a police
Highland App. No. 11CA26 22
officer. The State responds by arguing that the trial court’s exclusion of this
opinion testimony was proper, and that even if it was in error, such exclusion
was not prejudicial to Appellant considering that Appellant confessed to
shooting the victim.
{¶36}As this assignment of error also deals with the trial court’s
exclusion of certain evidence at trial, we refer to the standard of review set
forth under our analysis of Appellant’s second and fourth assignments, with
a simple reminder that a trial court has broad discretion in the admission or
exclusion of evidence and a trial court’s judgment will not be reversed
absent a clear showing of an abuse of that discretion, as well as material
prejudice to the defendant. See, State v. Green and State v. Powell, supra.
{¶37}A review of the record reveals that the testimony of Xenia
police officer, Chris Stutes, was the subject of a pre-trial motion in limine
filed by the State, which motion was granted by the trial court. During the
hearing on the motion in limine, defense counsel explained that it sought to
introduce the officer’s testimony “solely for the purpose of expressing an
opinion as to whether or not Mr. Harris is an honest person.” Defense
counsel argued that such testimony was permitted under Evid.R. 608(A), as
opinion testimony as to the victim’s character, as well as Evid.R. 608(B),
which deals with specific instances of conduct in regards to evidence of
Highland App. No. 11CA26 23
character and conduct of a witness. The trial court disagreed, reasoning that
any opinion offered by the officer would have to be based on specific
instances of conduct, which cannot be proved by extrinsic evidence under
Evid.R. 608(B), and that testimony of the officer related to his prior
involvement with the victim would be prohibited extrinsic evidence.
{¶38}Defense counsel again attempted to introduce Officer Stutes as a
witness at trial, arguing at that time that his testimony was permissible under
Evid.R. 404(A)(2) and 405(A), as “opinion bearing upon the pertinent
character trait of Jonathan Harris; or engaging in unprovoked acts of
violence.” The proffered testimony essentially consisted of Officer Stutes
opinion that the victim, Harris, was untruthful and had engaged in
unprovoked acts violence, testimony which was primarily based upon an
incident with law enforcement that occurred in 2005, for which Harris was
never convicted. The trial court adhered to its prior ruling on the motion in
limine and excluded the proffered testimony, reasoning that the opinion was
based upon Harris’ involvement in an incident for which he was never
convicted, and that the officer might be perceived as an expert, which would
result in undue prejudice against Harris.
{¶39}Evid.R. 404, which governs the admission of character
evidence, provides in pertinent part as follows:
Highland App. No. 11CA26 24
(A) Character evidence generally. Evidence of a person's
character or a trait of character is not admissible for the purpose
of proving action in conformity therewith on a particular
occasion, subject to the following exceptions:
***
(2) Character of victim. Evidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by
the prosecution to rebut the same, or evidence of a character
trait of peacefulness of the victim offered by the prosecution in
a homicide case to rebut evidence that the victim was the first
aggressor is admissible; however, in prosecutions for rape,
gross sexual imposition, and prostitution, the exceptions
provided by statute enacted by the General Assembly are
applicable.
Further, Evid.R. 405 governs methods of proving character and provides as
follows:
(A) Reputation or opinion
In all cases in which evidence of character or a trait of character
of a person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion. On cross-
Highland App. No. 11CA26 25
examination, inquiry is allowable into relevant specific
instances of conduct.
(B) Specific instances of conduct
In cases in which character or a trait of character of a person is
an essential element of a charge, claim, or defense, proof may
also be made of specific instances of his conduct.
{¶40} Thus, Evid.R. 404(A) generally limits evidence of a person’s
character, or certain character traits, subject to certain exceptions. In
particular, with respect to the character of a victim, Evid.R. 404(A)(2)
permits evidence of “a pertinent trait of character of the victim * * *”
Here, we find that even if the victim had a character trait of “engaging in
unprovoked acts of violence,” as argued by the defense, such trait fails to be
“pertinent” or “relevant” in the absence of a self-defense argument on the
part of the defendant. Of importance, defense counsel conceded prior to
instructions being provided that the evidence did not support a jury
instruction on self defense. State v. Depew, 4th Dist. No. 00CA2562, 2002-
Ohio-6158, ¶ 48 (evidence submitted for the purpose of proving self defense
was rendered irrelevant where self defense was not at issue); State v. White,
4th Dist. No. 03CA2926, 2004-Ohio-6005, ¶ 72 (“* * * evidence that is not
relevant is not admissible.” ); citing Evid.R. 402.
Highland App. No. 11CA26 26
{¶41}We now turn our attention to Appellant’s argument that this
evidence should have been admitted under Evid.R. 608, which provides as
follows:
“(A) Opinion and reputation evidence of character
The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer only to character
for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness
for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
(B) Specific instances of conduct
Specific instances of the conduct of a witness, for the purpose
of attacking or supporting the witness's character for
truthfulness, other than conviction of crime as provided in Evid.
R. 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if clearly probative of
truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness's
character for truthfulness or untruthfulness, or (2) concerning
Highland App. No. 11CA26 27
the character for truthfulness or untruthfulness of another
witness as to which character the witness being cross-examined
has testified. * * *”
The trial court concluded, and rightfully so, that the officer’s proffered
“opinion testimony” was essentially based upon a specific instance of
conduct of the victim that occurred several years prior, an incident for which
Appellant was never convicted. The trial court further concluded that the
officer’s testimony would have constituted “extrinsic evidence,” which,
except for evidence of actual convictions, is barred by Evid.R. 608(B).
{¶42}After reviewing the record, we agree with the trial court’s
conclusions and therefore find no abuse of discretion in the exclusion of this
evidence. Further, and as set forth above, we must be mindful that Evid.R.
401 defines “relevant evidence” as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” We cannot conclude that a victim’s alleged character of
untruthfulness, or character trait for “engaging in unprovoked acts of
violence,” is even relevant, bearing in mind the absence of a self defense
argument on the part of Appellant. As such, and in light of our conclusion
Highland App. No. 11CA26 28
that the trial court did not abuse its discretion in excluding Officer Stutes’
testimony, Appellant’s third assignment of error is overruled.
ASSIGNMENT OF ERROR V
{¶43}In his fifth assignment of error, Appellant contends that the trial
court erred in entering judgments of conviction and sentences on both
felonious assault and aggravated burglary in violation of R.C. 2941.25 and
the double jeopardy clause, claiming that they are allied offenses of similar
import. The State contends that aggravated burglary and felonious assault
are not allied offenses and as such did not merge for purposes of sentencing.
{¶44}When determining whether multiple offenses should have
merged under R.C. 2941.25, “[o]ur standard of review is de novo.” State v.
Buckta, 4th Dist. No. 96 CA 3, 1996 WL 668852 (Nov. 12, 1996); See, also,
Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶ 16 (“ ‘We review
questions of law de novo.’ ”); quoting State v. Elkins, 4th Dist. No. 07CA1,
2008-Ohio-674, ¶ 12, quoting Cuyahoga Cty. Bd. of Commrs. v. State, 112
Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.
R.C. 2941.25 provides:
“(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
Highland App. No. 11CA26 29
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
“(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.”
{¶45} As the Supreme Court recently explained in State v. Johnson,
128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C.
2941.25, “the court must determine prior to sentencing whether the offenses
were committed by the same conduct.” Johnson at ¶ 47. The initial question
“is whether it is possible to commit one offense and commit the other with
the same conduct, not whether it is possible to commit one without
committing the other.” Johnson at ¶ 48 (Emphasis added). “If the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
offenses are of similar import.” Id. Next, if the answer to the first question
is yes, we must then look to the facts of the case and determine whether the
two offenses actually were committed by the same conduct, “i.e., ‘a single
Highland App. No. 11CA26 30
act, committed with a single state of mind.’ ” Johnson at ¶ 49; quoting State
v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. “If
the answer to both questions is yes, then the offenses are allied offenses of
similar import and will be merged.” Johnson at ¶ 50.
{¶46} “Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses are
committed separately, or if the defendant has separate animus for each
offense, then, according to R .C. 2941.25(B), the offenses will not merge.”
Johnson at ¶ 51 (Emphasis added).
{¶47}Here, Appellant was convicted of aggravated burglary, a first
degree felony in violation of R.C. 2911.11(A)(1), and felonious assault, a
second degree felony in violation of 2903.11(A)(2), each with R.C.
2941.145 firearm specifications. R.C. 2911.11, which defines aggravated
burglary, provides in pertinent part as follows:
“(A) No person, by force, stealth, or deception, shall trespass in
an occupied structure or in a separately secured or separately
occupied portion of an occupied structure, when another person
other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured
Highland App. No. 11CA26 31
or separately occupied portion of the structure any criminal
offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict
physical harm on another;”
R.C. 2903.11(A)(2), which defines felonious assault, provides in pertinent
part as follows:
“(A) No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance.”
{¶48}Ohio cases have consistently held that aggravated burglary and
felonious assault are not allied offenses of similar import. State v. Barker,
183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 18 (2nd Dist);
citing State v. Johnson, 5th Dist. No. 06CAA070050, 2006-Ohio-4994; State
v. Jackson, 21 Ohio App.3d 157, 487 N.E.2d 585 (8th Dist. 1985); State v.
Feathers, 11th Dist. No. 2005-P-0039, 2007-Ohio-3024; see also, State v.
Carter, 8th Dist. No. 61502, 1993 WL 7700 (January 14, 1993). However,
these cases and the reasoning applied therein pre-date the Supreme Court of
Ohio’s test recently announced in State v. Johnson, supra.
Highland App. No. 11CA26 32
{¶49} More recently, however, we have held that a defendant could
commit aggravated robbery and felony murder with the same conduct. See
State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 32; State v. Abdi,
4th Dist. No. 09CA35, 2011-Ohio-3550, ¶ 39. By extension, we have also
reasoned that aggravated burglary and aggravated (felony) murder are
offenses of similar import under R.C. 2941.25(A). State v. Williams, 4th
Dist. No. 10CA3381, 2012-Ohio-6083, ¶ 50. Thus, in considering our prior
reasoning that aggravated burglary and aggravated murder may be
committed with the same conduct under State v. Johnson, certainly
aggravated burglary and felonious assault may be committed by the same
conduct as well.
{¶50} Based upon the record before us, it appears that the aggravated
burglary was committed with the same animus as the felonious assault.
Appellant was convicted of breaking into the victim’s residence and
inflicting physical harm on him by shooting him in the face two times, thus
completing the aggravated burglary. State v. Lacavera, 8th Dist. No. 96242,
2012-Ohio-800, ¶ 46. A review of the record before us reveals that these
events all occurred as part of the same transaction, and thus were committed
with the same animus. Id. See also, State v. Ragland, 5th Dist. No.
2010CA00023, 2011-Ohio-2245, ¶ 80 (implicitly finding without expressly
Highland App. No. 11CA26 33
stating that, under the Johnson test it is possible to commit aggravated
burglary and felonious assault with the same conduct, but ultimately
determining the two were not allied offenses as they were committed
separately and with a separate animus).
{¶51} As such, we conclude that the crimes of aggravated burglary
and felonious assault are allied offenses of similar import. Thus, Appellant
may be found guilty of both, but only convicted and sentenced for one.
State v. Swiergosz, 6th Dist. App. No. l-10-1013, l-10-1052, 2012-Ohio-830,
¶ (“The statutory mandate that only one ‘conviction’ result from allied
offenses is a restriction ‘against sentencing a defendant for more than one
allied offense.’ (Emphasis added) State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, ¶ 29)”); R.C. 2941.25(A). Therefore, this
matter must be remanded for resentencing. At the sentencing hearing, the
State must elect which allied offense it will pursue for purposes of
sentencing and conviction. Lacavera at ¶ 47; citing State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25. Accordingly,
Appellant’s fifth assignment of error is sustained and the decision of the trial
court convicting and sentencing Appellant for both of these offenses is
reversed.
Highland App. No. 11CA26 34
ASSIGNMENT OF ERROR VI
{¶52} In his sixth assignment of error, Appellant contends that the
trial court erred in entering consecutive sentences on the firearm
specifications from a single transaction. The State counters by arguing that
the trial court was correct in sentencing Appellant to consecutive firearm
specifications, which it contends was required under R.C. 2929.14(D)(1)(g).
However, based upon our disposition of Appellant’s fifth assignment of
error, which concluded that aggravated burglary and felonious assault are
allied offenses of similar import for which the State could only obtain one
sentence and conviction, we agree with Appellant.
{¶53} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896
N.E.2d 124, the Supreme Court of Ohio announced the standard for
appellate review of felony sentences. We must employ a two-step analysis.
First, we must “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether
the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If
the sentence is not clearly and convincingly contrary to law, we review it for
an abuse of discretion. Id.
{¶54} Appellant complains that the trial court’s imposition of
consecutive sentences for the two firearm specifications was contrary to law.
Highland App. No. 11CA26 35
The State responds by directing our attention to the version of R.C. 2929.14
that was in effect at the time Appellant committed his crimes, with an
effective date of April 7, 2009, which provides in section (D)(1)(g) as
follows:
“If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies is aggravated murder,
murder, attempted aggravated murder, attempted murder,
aggravated robbery, felonious assault, or rape, and if the
offender is convicted of or pleads guilty to a specification of the
type described under division (D)(1)(a) of this section in
connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified
under division (D)(1)(a) of this section for each of the two most
serious specifications of which the offender is convicted or to
which the offender pleads guilty and, in its discretion, also may
impose on the offender the prison term specified under that
division for any or all of the remaining specifications.”
(Emphasis added).
The specifications described in 2929.14(D)(1)(a) include 2941.145
specifications, which are the types of firearm specifications Appellant was
Highland App. No. 11CA26 36
sentenced on relating to the aggravated burglary, as well as the felonious
assault charges. Further, R.C. 2929.14(D)(1)(a)(ii) states that the prison
term for R.C. 2941.145 specifications is three years.
{¶55} Here, although Appellant was found guilty of two felony
offenses, one of which was felonious assault, we have determined that those
offenses were allied offenses of similar import. As such, Appellant can only
be “convicted” of one of the offenses. “Where the same conduct by
defendant can be construed to constitute two or more allied offenses of
similar import, the indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.” R.C.
2941.25(A); State v. Swiergosz, supra, at ¶42. Further, in order to correctly
apply R.C. 2929.14(D)(1)(g), which specifies that an offender must be
“convicted” or have plead guilty to two or more felonies, we must recognize
that “[u]nder R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the
imposition of a sentence or penalty.” Swiergosz at ¶ 43; citing Whitfield at ¶
12. Because Appellant cannot be convicted of both aggravated burglary and
felonious assault, he does not fall under the purview of R.C.
2929.14(D)(1)(g), which requires convictions for two felonies. Thus, the
trial court’s imposition of two three-year firearms terms was contrary to law.
Accordingly, Appellant’s sixth assignment of error is sustained. As a result,
Highland App. No. 11CA26 37
the trial court’s decision in this regard is also reversed, and the matter is
remanded for resentencing in accordance with our instructions under
Appellant’s fifth assignment of error.
JUDGMENT REVERSED AND REMANDED.
Highland App. No. 11CA26 38
Harsha, J., concurring:
{¶56} I concur in judgment and opinion on the first and sixth
assignments of error. However, I concur in judgment only on the remaining
assignments of error.
{¶57} On the second assignment of error I conclude both the trial
court and our opinion mischaracterizes the nature of the impeachment
evidence offered by the appellant. I agree with Jacobs’ assertion that
evidence of the victim’s drug use and mental illness are probative of the
victim’s capacity to observe, remember or relate in events. Thus, they
should have been admitted under Evid.R. 616(B), which expressly permits
the use of extrinsic evidence to challenge the witness’s credibility on those
bases.
{¶58} It was also error under the fourth assignment of error to
prohibit the appellant from attacking the victim’s character for truthfulness
under Evid.R. 404(A)(3), which allows an opponent to impeach a witness’s
credibility. A witness’s character trait for veracity is always relevant to
determine credibility. See Evid.R. 404(A)(3), staff note.
{¶59} Likewise, I conclude under the third and fourth assignments of
error that the trial court erred in refusing to admit the opinion testimony
Highland App. No. 11CA26 39
concerning the victim’s character for truthfulness. See Evid.R. 404(A)(3),
Evid.R. 405(A) (the method of proving character – by opinion) and Evid.R.
608(A) (evidence of character of a witness by opinion).
{¶60} However, based upon the admission of the appellant’s
confession and the evidence that corroborates the victim’s testimony, I find
the errors in assignments of error two, three, and four to be harmless beyond
a reasonable doubt. See, Chapman v. California (1967), 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.E.2d 705.
{¶61} Moving to the fifth assignment of error, I agree the offenses are
“of similar import.” But, I would remand to the trial court to determine if
they were “committed by the same conduct”, i.e. a single act, committed
with a single state of mind. See State v. Williams, Scioto App. No.
10CA3381, 2012-Ohio-6083, ¶¶ 45-46.
Highland App. No. 11CA26 40
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED
and that the Appellant recover of Appellee 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 Highland
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Abele, J: Concurs in Judgment and Opinion.
Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I & VI;
Concurs in Judgment Only with Opinion as to Assignments of Error II, III,
IV, & V.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding 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.
State v. Jacobs
Combined Opinion