[Cite as State v. Harris, 2013-Ohio-5733.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99817
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEVAN HARRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-566964
BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 26, 2013
ATTORNEY FOR APPELLANT
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Adrienne E. Linnick
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Devan Harris appeals his convictions from the
Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.
{¶2} A true bill indictment was returned against Harris charging him with two
counts of aggravated robbery, two counts of felonious assault, kidnapping and having
weapons while under disability. With the exception of the having weapons while under
disability charge, each count contained one- and three-year firearm specifications.
Appellant pled not guilty to the charges and the case proceeded to a jury trial.
{¶3} The facts presented at trial were as follows: On September 14, 2012,
Joseph Christburg was attending a party at a friend’s home. He left the party around
midnight and began traveling to the home of his girlfriend on Alcoy Road. He boarded
a bus that took him to a station where he boarded a second bus that took him to Euclid
and Alcoy where he disembarked. On both buses and at the bus station, Christburg
noticed a male wearing black jeans, a black leather jacket with checkerboards and a
Chicago White Sox baseball hat. On the second bus, the male sat approximately three
seats behind Christburg. At Euclid and Alcoy, the male also exited the second bus and
began to close the distance on foot between himself and Christburg as they approached
Christburg’s destination on Alcoy.
{¶4} Near the home of Christburg’s girlfriend, the male called out to Christburg
and said something about his phone. Christburg had never seen the man before. The
man produced a black handgun, fired once and demanded Christburg give to him his
personal belongings. Christburg grabbed the man as he approached and slammed him
to the ground. As the man fell, he shot Christburg in the stomach. The man’s baseball
hat fell off as a result of the collision and he fled on foot. Christburg alerted his
girlfriend’s family who called for an ambulance. Christburg identified Harris as the
shooter at trial.
{¶5} Cleveland police responded to the scene and discovered the baseball hat.
Christburg provided police with a description of the suspect that was broadcast to other
officers in the area who then began to search for the assailant in the direction that
Christburg had seen the man run. Within five minutes of the broadcast, Harris was
discovered by police in an industrial area approximately half a mile from the scene of the
crime. Harris was wearing a black and white checkered leather jacket. Harris did not
have any weapons on his person and no weapons were recovered in the area.
{¶6} The Ohio Bureau of Criminal Investigation tested the baseball hat that had
been recovered from the scene and found a mixture of DNA on the hat. However, the
hat had a major profile that was much stronger than the minor profile. This prevalent
DNA profile was consistent with the DNA of Harris such that the profile would occur in
one in 68 quintillion, 70 quadrillion unrelated people.
{¶7} A gunshot residue test was performed on Harris but only one particle
characteristic for gunshot primer residue was discovered on one of his hands. The test
was inconclusive because more than one particle would be expected to be found on the
hand of a person firing a weapon and the single particle may have come from a
secondary transfer rather than the firing of a weapon.
{¶8} Harris admitted to police that he was present on the buses that Christburg
rode to Euclid and Alcoy. Police interviewed Christburg two days after the shooting
and administered a six-pack photo array. Christburg identified a different man as his
assailant. At trial, Christburg maintained that Harris was the shooter and that he was
under the influence of morphine and Demerol at the time of the photo array identification
and that he simply selected a person who looked familiar to him.
{¶9} Harris moved for acquittal of all charges pursuant to Crim.R. 29 and the
trial court denied the motion. The jury found Harris guilty as charged. At sentencing,
the trial court merged the gun specifications as well as all counts, with the exception of
the having weapons while under disability charge, as allied offenses of similar import.
The state elected to proceed to sentencing on the charge of aggravated robbery in
violation of R.C. 2911.01(A)(1). The trial court imposed a seven year prison term on
the aggravated robbery charge to be served consecutively to a three-year term for the
firearm specification. The trial court also imposed a three-year prison term on the
having weapons while under disability conviction and ordered that sentence to be served
concurrently with the aggravated robbery sentence. Harris’ cumulative sentence was
ten years. Harris timely appealed, presenting four assignments of error, the first of which
states:
I. The convictions for aggravated robbery, felonious assault, kidnapping,
and having weapons under disability, were against the manifest weight of
the evidence, and not supported by sufficient evidence.
{¶10} This court has said that, in evaluating a sufficiency of the evidence
argument, courts are to assess not whether the state’s evidence is to be believed but
whether, if believed, the evidence against a defendant would support a conviction.
State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry then
is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt. Id.
{¶11} Harris does not challenge any particular element of any of the offenses for
which he was convicted. His sole argument is that the state did not present sufficient
evidence to establish his identity as the shooter. The state did, in fact, present such
evidence in the form of Christburg’s in-court identification of Harris, the discovery of
Harris’ DNA on the baseball hat recovered from the scene, Harris’ admission that he was
present on the buses where Christburg first took notice of him and Harris’ apprehension
just half a mile from the crime scene wearing clothing consistent with the description
Christburg provided to police.
{¶12} Harris argues that Christburg’s in-court identification of him was derived
from unnecessarily suggestive procedures that had a likelihood of leading to a
misidentification and thus violated his right to due process.
{¶13} Harris did not object to either the in-court identification or the out-of-court
identification. Harris’ failure to object to the identification testimony deprived the trial
judge of any opportunity to rule on this issue. As a result, Harris has waived all but
plain error. In re Reynolds, 12th Dist. Madison No. CA95-10-034, 1996 Ohio App.
LEXIS 2999 (July 8, 1996), citing State v. Greer, 39 Ohio St.3d 236, 246, 530 N.E.2d
382 (1988). An error constitutes plain error if it is obvious and affects a substantial
right. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 108.
Plain error exists only where it is clear that the verdict would have been otherwise but
for the error. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶
52. Notice of plain error is to be taken with utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips,
74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995).
{¶14} An identification derived from unnecessarily suggestive procedures, which
have a likelihood of leading to a misidentification, violates a defendant’s right to due
process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In
determining the admissibility of challenged identification testimony, a reviewing court
applies a two-prong test: (1) did the defendant demonstrate that the identification
procedure was unduly suggestive; and, if so, (2) whether the identification, viewed under
the totality of the circumstances, is reliable despite its suggestive character. State v.
Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19, citing State v. Wills,
120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997); State v. Thompson, 8th
Dist. Cuyahoga No. 90606, 2009-Ohio-615, ¶ 32; State v. Page, 8th Dist. Cuyahoga
No. 84341, 2005-Ohio-1493. If the pretrial confrontation procedure was not unduly
suggestive, any remaining questions as to reliability go to the weight of the identification,
not its admissibility, and no further inquiry into the reliability of the identification is
required. Wills at 325.
{¶15} The Supreme Court has set forth the following factors to consider regarding
potential misidentification:
“the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’ prior
description of the criminal, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime and
the confrontation * * *.”
Biggers at 199-200.
{¶16} The court must review these factors under the totality of the circumstances.
Id. Furthermore, “although the identification procedure may have contained notable
flaws, this factor does not, per se, preclude the admissibility of the identification.”
Page, citing State v. Merrill, 22 Ohio App.3d 119, 121, 489 N.E.2d 1057 (8th
Dist.1984); State v. Moody, 55 Ohio St.2d 64, 67, 377 N.E.2d 1008 (1978).
{¶17} We find no evidence of a suggestive pretrial procedure that gave rise to a
faulty in-court identification. Harris’ reliance upon Foster v. California, 394 U.S. 440,
89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), is misplaced. In Foster, the witness could not
positively identify the suspect in a lineup. The witness thought the suspect might be the
correct man but was not sure. The suspect was brought into a room and placed across a
table from the witness who was still uncertain the defendant was the correct man. A
week later, the witness was shown a second lineup in which the defendant was the only
person who had appeared in the first lineup. After the second lineup, the witness was
convinced the defendant was the correct man and identified him as such at trial.
{¶18} In this instance, Christburg was shown a single lineup and he chose
someone other than Harris. When Christburg later inquired about the matter to police, he
was informed that he had selected the wrong man. Christburg testified that he circled
the wrong man in the lineup because he was heavily medicated at the time. There is no
evidence that the lineup even contained Harris. Presumably, Harris did not object to the
introduction of the out-of-court identification because it was helpful to his case and
harmful to the credibility of Christburg’s in-court identification. Harris certainly had an
opportunity to challenge Christburg’s credibility in this manner at trial.
{¶19} Furthermore, the factors identified in Biggers, 409 U.S. 188, 93 S.Ct. 375,
34 L.Ed.2d 401 (1972), weigh against the potential for misidentification in this case.
Christburg had ample opportunities to view Harris during both bus rides that they shared,
their time at the bus station and the eventual confrontation. The testimony at trial
established that police obtained a description of the suspect from Christburg including
the fact that the suspect was wearing a black jacket with “some sort of white in [it].”
Christburg testified at trial that he was 100 percent positive that Harris was the shooter
and provided an explanation for his inconsistent pretrial identification.
{¶20} Finally, Harris argues that the eyewitness identification procedure used in
the pretrial lineup violated R.C. 2933.83 in that the police failed to use a blind
administrator. Again, Harris failed to file a motion to suppress the pre-trial
identification testimony that only undermined the credibility of Christburg’s in-trial
identification. Regardless, the police testimony at trial revealed that a blind
administrator was, in fact, used.
{¶21} We find no plain error in the admission of Christburg’s identification
testimony. Harris’ argument that the state failed to present sufficient evidence of his
identity as the shooter is without merit.
{¶22} Harris also argues that his convictions were against the manifest weight of
the evidence. A manifest weight challenge questions whether the prosecution met its
burden of persuasion. State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶
27. When considering a manifest weight challenge, a reviewing court reviews the
entire record, weighs the evidence and all reasonable inferences therefrom, considers the
credibility of the witnesses and determines whether the finder of fact clearly lost its way.
State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing
court may reverse the judgment of conviction if it appears that 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. Id.
{¶23} In light of the evidence presented at trial, particularly Christburg’s
extensive opportunity to view Harris prior to and during the commission of the offenses,
Christburg’s description of the suspect that culminated in Harris’ arrest roughly half a
mile away and the DNA evidence linking Harris to the scene of the crime, we cannot say
that the finder of fact clearly lost its way in finding appellant guilty of the above
offenses.
{¶24} Harris’ first assignment of error is overruled.
{¶25} Harris’ second assignment of error states:
II. The trial court erred when it found Harris competent to stand trial
without complying with R.C. 2945.37(E).
{¶26} Harris argues that he did not stipulate to a competency report that found
him competent to stand trial and that pursuant to R.C. 2317.36 the report could only be
admitted if the person who made it testified. No such testimony occurred. We find no
error because the record reflects that Harris did, in fact, stipulate to the report.
{¶27} Harris was referred for an evaluation of his competency to stand trial. The
trial court received the competency report and held a competency hearing. The report
found Harris to be competent to stand trial. The state stipulated to the report at the
initial hearing, but the court continued the hearing to allow for Harris’ counsel to further
discuss the charges with him. When the court reconvened the hearing on competency,
Harris’ counsel noted that he had some reservations about his communication with Harris
but admitted that he did not have anything to offer opposing the findings of the
competency report. The trial court found Harris competent to stand trial and noted,
without objection, that Harris had stipulated to the report. We find Harris’ argument to
be without merit.
{¶28} Harris’ second assignment of error is overruled.
{¶29} Harris’ third assignment of error states:
III. The trial court erred when it did not require police compliance with
R.C. 2933.83(B) in regards to the out-of-court photo array, and it did not
issue a limiting instruction to the jury regarding the non-compliance.
{¶30} In Harris’ first assignment of error, we noted that Harris did not object to
the out-of-court identification testimony, that such testimony was in fact harmful to the
state’s case rather than Harris and that a blind administrator was used. We concluded
that no plain error existed in regards to this testimony.
{¶31} In this assignment of error, Harris further argues that the trial court should
have provided a jury instruction pursuant to R.C. 2933.83(C)(3) explaining that the jury
may consider credible evidence of noncompliance with R.C. 2933.83 in determining the
reliability of any eyewitness identification resulting from or related to the lineup.
{¶32} Under R.C. 2933.83(C)(1), evidence of a failure to comply with the
required protocol “shall be considered by trial courts in adjudicating motions to suppress
eyewitness identification resulting from or related to the lineup.” “R.C. 2933.83(C)(1),
however, does not provide an independent basis upon which to suppress evidence, and a
trial court errs in solely relying on the statute in suppressing an identification.” State v.
Alexander, 8th Dist. Cuyahoga No. 98941, 2013-Ohio-2533, ¶ 27, quoting State v. Sails,
2d Dist. No. 24733, 2012-Ohio-4453, ¶ 30. Rather, the “penalty” for failure to comply
with R.C. 2933.83 is that “the jury shall be instructed that it may consider credible
evidence of noncompliance in determining the reliability of any eyewitness
identification.” Id. at ¶ 31; R.C. 2933.83(C)(3).
{¶33} R.C. 2933.83(C)(3) provides:
(3) When evidence of a failure to comply with any of the provisions of this
section, or with any procedure for conducting lineups that has been adopted
by a law enforcement agency or criminal justice agency pursuant to
division (B) of this section and that conforms to any provision of divisions
(B)(1) to (5) of this section, is presented at trial, the jury shall be instructed
that it may consider credible evidence of noncompliance in determining the
reliability of any eyewitness identification resulting from or related to the
lineup.
{¶34} In the present instance, we note that Harris did not move to suppress the
out-of-court identification, the identification weakened the state’s case rather than his
own and that Harris did not object to the jury instructions or request an instruction
pursuant to R.C. 2933.83(C)(3). Even ignoring all of these deficiencies the instruction
that Harris now argues the trial court should have provided is inapplicable to the present
instance because Harris was not identified in the out-of-court photo array. The in-court
identification of Harris was not a result from, or related to, the lineup. Furthermore, the
jury was presented with clear evidence undermining the reliability of the out-of-court
identification in that the state admitted that Christburg selected a different person as his
assailant. It is unclear why Harris would be entitled to the above instruction further
undermining identification testimony that was in his favor. The out-of-court
identification testimony merely provided Harris with an opportunity to attack the
credibility of Christburg’s in-court identification.
{¶35} Harris’ third assignment of error is overruled.
{¶36} Harris’ fourth assignment of error states:
IV. The trial court committed plain error when it failed to provide the jury
with a limiting instruction that Harris’ prior conviction for drug possession
could be used solely for the purpose of determining whether the state
proved the charge of having a weapon under disability, and not as
corroborating evidence of his guilt on the other charges.
{¶37} In his final assignment of error, Harris argues that the trial court committed
plain error by not providing a limiting instruction to the jury regarding his prior
conviction of possession of illegal drugs that was stipulated to by the parties for the
purpose of proving the having weapons while under disability charge. Because
appellant did not object to the jury instructions, we review this claim for plain error.
State v. Leonard, 8th Dist. Cuyahoga No. 98626, 2013-Ohio-1446, ¶ 32; Crim.R. 30(A).
Under Crim.R. 52(B), a plain error affecting a substantial right may be noticed by an
appellate court even though it was not brought to the attention of the trial court. An
error rises to the level of plain error only if, but for the error, the outcome of the
proceedings would have been different. State v. Harrison, 122 Ohio St.3d 512,
2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61; State v. Long, 53 Ohio St.2d 91, 97, 372
N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution, under
exceptional circumstances, and only to prevent a manifest miscarriage of justice.” Id.
{¶38} Upon review of the record, we find that Harris has failed to demonstrate
that the trial court’s failure to, sua sponte, give the jury a limiting instruction affected his
substantial rights. The prosecutor did not question the witnesses about the prior
conviction and the sole reference to the prior conviction during closing arguments was
not inappropriate because it was strictly within the context of the elements of the having
weapons while under disability charge. So as to further foreclose any confusion
regarding the limited purpose of the stipulation, the trial court reiterated the basic
components of the stipulated offense within the context of its instructions directly related
to the charge of having weapons while under disability. As discussed above, significant
direct and circumstantial evidence was presented demonstrating Harris’ identity as
Christburg’s assailant. We have previously rejected plain error arguments where a trial
court failed to provide a limiting instruction under similar conditions. See, e.g., State v.
Gibson, 8th Dist. Cuyahoga No. 92275, 2009-Ohio-4984; State v. Blackman, 8th Dist.
Cuyahoga No. 95168, 2011-Ohio-2262. On these facts, the trial court’s failure to issue
a limiting instruction did not rise to the level of plain error.
{¶39} Harris’ fourth assignment of error is overruled.
{¶40} The judgment of the trial court is 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
lower court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. The case is 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR