State v. Harris

[Cite as State v. Harris, 2023-Ohio-1892.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111940
v. :

JAI’SHAWN HARRIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 8, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-656998-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl M. Felice, Assistant Prosecuting
Attorney, for appellee.

Robert A. Dixon, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Jai’Shawn Harris, appeals his convictions

following a jury trial. For the reasons that follow, we affirm.

In 2021, Harris was named in a six-count indictment charging him

with one count of felonious assault, a second-degree felony in violation of R.C.
2903.11(A)(1) (Count 1); two counts of felonious assault, a second-degree felony in

violation of R.C. 2903.11(A)(2) (Counts 2 and 3); one count of discharge of a firearm

on or near prohibited premises, a first-degree felony violation of R.C.

2923.162(A)(3) (Count 4); criminal damaging or endangering in violation of R.C.

2909.06(A)(1) with a furthermore clause that enhanced the charge to a first-degree

misdemeanor (Count 5); and tampering with evidence, a third-degree felony in

violation of R.C. 2921.12(A)(1) (Count 6). Counts 1, 2, 3, and 4 carried one- and

three-year firearm specifications.

I. Jury Trial

Around 4:00 p.m. on February 2, 2021, Harris went to the Third

District Police Station to file a report. Surveillance video of the police station’s

parking lot showed him arriving in a white Dodge Avenger with distinctively

decorated door panels on both sides of the vehicle and a black painted stripe

covering the hood, roof, spoiler, and part of the rear-end bumper (“the Dodge”). The

video showed Harris exiting the passenger side of the Dodge and wearing a dark-

colored coat with a light-colored lining, collar, and design on the back. The state

also presented still images taken from the surveillance video that displayed Harris’s

appearance. Harris walked inside the police station, while the Dodge waited in the

parking lot. A surveillance camera posted inside the police station filmed Harris as

he waited in the vestibule-lobby area and recorded his interactions with Officer Allen
Nagy, who testified that he took a report from “Jai’Shawn Harris” at the station.1

The state also presented still images taken from this video displaying Harris’s

clothing, specifically the design on the back of his jacket. Approximately 25-30

minutes later, Harris exited the police station and got into the passenger side of the

Dodge, and the vehicle exited the parking lot.

Mounted police cameras around the area captured the distinctively

marked Dodge traveling through the streets of Cleveland, specifically from East 55th

Street to Kinsman Road. Macie Kalinowski, a crime scene analyst for Cleveland’s

Real Time Crime Center (“RTCC”), testified that RTCC cameras capture crimes as

they happen and are a tool for officers in their investigations. The jury viewed RTCC

video footage as Kalinowski explained the Dodge’s path of travel.

In state’s exhibit Nos. 30.5.1 and 30.5.2, the cameras filmed the

Dodge stopped in the turn lane at a red light at the intersection of East 55th,

Woodland Avenue, and Kinsman, and a blue Ford 150 truck (“the Ford”), driven by

Angel Jones (“Angel”) stopped behind the Dodge. Angel’s cousin, I.K. (hereinafter

“the victim”), was riding in the front passenger seat. According to the victim, the

stop light is a “short light,” meaning there is not much time to make it through the

light after it turns green.

As the two vehicles waited for the light to turn green, unbeknownst to

Angel, an ambulance with lights and sirens approached the intersection from the

1Officer Nagy was not asked to identify Harris in court as the person from whom
he took the report.
west on Woodland, causing all vehicles to yield to the oncoming safety vehicle. The

victim testified that the light turned green, but because the vehicle in front of Angel

did not move due to the ambulance, Angel began honking the horn “incessantly.”

(Tr. 359.) Angel’s honking triggered a road-rage incident that ended with Harris

shooting at the Ford, striking the victim in the head.

The victim testified that the Dodge “cut them off” after both vehicles

turned onto Kinsman, causing Angel to chase after the Dodge. She stated that

someone on the passenger side of the Dodge flipped them off, which caused Angel

to “cut off” and “brake check” the Dodge, meaning that Angel deliberately stopped

suddenly, which could cause the Dodge to hit them from behind. According to the

victim, this occurred multiple times, and one time Angel braked “so hard” that the

victim “flew out of [her] seat.” (Tr. 362.)

The RTCC videos showed that when both cars approached the

intersection of Kinsman, Union Avenue, and East 140th Street, the Dodge stopped

in the left lane, and the Ford stopped in the right lane just behind the back end of

the Dodge. The victim testified that the driver of the Dodge exited the vehicle,

confronted Angel, who remained seated inside the truck, and asked, “What are you

doing? What’s going on?” (Tr. 366.) According to the victim, Angel responded, “So

you’re just going to shoot us?” and then she “shrugged her shoulders.” Id. The

victim stated that she did not see the driver with a gun in his hand or pointing

anything at them. She testified that she saw a “guy in a red ski” mask emerge from

the passenger side of the vehicle. The victim stated that this person “starts to look
at me in my eyes, for about 30 seconds, just like staring at me in my eyes.” (Tr. 368.)

She stated that she became scared and turned toward the door to open it but was

shot behind the left ear, just below the earlobe, severing part of her ear, and breaking

her jaw, nose, and sinus. She stated that she was disoriented and unaware she had

been shot, and thought they had been in a car accident. The jury watched body

camera video footage of the victim following the shooting.

The victim testified that after being hospitalized for five days,

Detectives Zara Hudson and Salvatore Santolli spoke with her about the shooting

and presented her with two photo arrays. In the first array, she identified the man

in the red ski mask as the shooter with 80 percent certainty. In the second array,

she identified the driver of the Dodge with 100 percent certainty. Detective Hudson

testified that the victim identified Harris as the shooter, and Joshua Jones as the

driver of the Dodge.

On cross-examination, the victim admitted that she did not see a gun

or anyone firing the gun. Nevertheless, she testified that she knew that Harris shot

her because even though he was wearing a ski mask, she recognized his eyes because

of “the way he was staring at [her] before he shot [her],” she saw little dreadlocks

poking out of the mask, and based on the angle he was standing. (Tr. 379, 400.)

Two surveillance cameras from an HP gas station nearby captured the

conclusion of the road-rage incident that transpired from East 55th Street to

Kinsman to East 140th. Detective Hudson identified state’s exhibit No. 31.1 as one

of the videos he obtained from HP. The camera faced Kinsman and captured the
interaction between the occupants of the Dodge and the Ford, but a gas pump

partially obstructed the view of the Dodge vehicle. The state played the video in its

entirety for the jury, and then played the video frame-by-frame, stopping on certain

frames showing the occupants of the Dodge exiting the vehicle.

Detective Hudson also identified state’s exhibit No. 31.2, another

video he obtained from HP from a camera also facing Kinsman, that captured the

nearly 40-second interaction between the occupants of the Dodge and the Ford but

where the view of the vehicles was unobstructed. Again, the state played the video

uninterrupted for the jury, showing the sequence of the events of the Dodge stopping

in the left lane of the street, the Ford stopping in the right lane in line with the back

bumper of the Dodge, the occupants of the Dodge exiting the vehicle, and the Ford

abruptly speeding off at an angle through the gas station. The state then played the

video frame-by-frame, stopping on certain frames showing the person exiting the

Dodge, who was seated in the front passenger seat. Detective Hudson testified about

a frame of the video where “a glimmer of red” could be seen from the passenger’s

head. He testified that this was significant because his investigation revealed that

the shooter exited the front passenger seat and was wearing a red mask. Detective

Hudson also focused on the video frames that showed the passenger wearing a dark-

colored coat with light trim and where a design on the back of coat was visible. The

state also introduced still photos captured from the videos — exhibit Nos. 66.1

through 73. Detective Hudson testified that based on these images, the passenger

seen exiting from the front passenger seat of the Dodge on Kinsman was dressed in
the same clothing that Harris was wearing at the Third District Police Station when

he exited and entered the front passenger seat of the same vehicle. Detective

Hudson admitted, however, that he did not see a firearm in the videos.

Joshua Jones testified that he was driving his 2008 Dodge Avenger

on the day of the shooting with “Rico” and Harris as passengers. He admitted that

the vehicle seen in surveillance and RTCC videos is his vehicle. Jones stated that he

was indicted as a codefendant in this case for tampering with evidence and

obstructing justice because he deleted information from his cell phone that,

according to Jones, would have inculpated him in connection with the shooting. He

admitted further that he entered into a plea agreement with the state whereby he

agreed to testify truthfully in exchange for a reduction of the charges against him.

Jones testified that he drove Harris to the Third District Police Station

and that he and Rico waited in the car in the parking lot as Harris went inside. He

stated that about 25-30 minutes later, Harris returned to the car and sat in the front

passenger seat. He described to the jury that Harris was wearing a jean jacket, gray

hoodie, sweatpants, and a red ski mask that Harris had initially rolled up like a hat.

Jones identified Harris in state’s exhibit No. 19 — a still photo taken from

surveillance video from the police station.

Jones testified that as he drove back toward his house, a blue truck

kept “brake checking” him from East 55th and Kinsman, up to Kinsman and East

140th. He denied that he engaged in any road-rage conduct but admitted that he

sped around the Ford. Jones testified that he stopped his vehicle in the left lane and
the Ford stopped in the right lane just behind his vehicle. He stated that he got out

of the car to confront the driver of the truck, and Rico exited from the driver’s side

back passenger seat. Jones stated that he walked behind his vehicle but never

approached the window because he heard a gunshot and the truck sped off. Jones

testified that he got into his car and drove off. During his testimony, the HP

surveillance videos were played for the jury.

According to Jones, he did not see anyone shooting a gun, but saw a

gun earlier that day in the front passenger seat where Harris was seated. Although

he testified that he did not see Harris shoot the gun, he stated that “when I turned

around to get back in the car, I saw him holding the gun.” (Tr. 577.) On cross-

examination, however, he admitted that he never saw Harris holding the gun outside

the car. (Tr. 587.) Jones stated that although he knew Rico to carry a gun and it was

possible Rico had a gun on him that day, he knew that Rico did not shoot at the truck

because the shot came from “his left.” (Tr. 594.) Nevertheless, he stated that Rico

“cleaned” the gun after the shooting. (Tr. 595-596.)2

Jones admitted that he lied to the police on two occasions regarding

the shooting: first when the police came to his house after the shooting, by telling

them that he was not present at the time of the shooting, but that “Slim” was driving

his car, and again when he gave his initial statement to police after he and Rico

2 Jones admitted that the phrase “to clean,” means to get rid of or dispose of
evidence.
discussed the incident, by telling them that he was not in the car but that Rico told

him that Harris was driving his car and “Brody” was the shooter.

Anthony Thomas testified that he is known as “Rico” and that he was

seated in the backseat of the Dodge on the day of the shooting. He stated that after

Jones stopped to confront the driver, he stepped halfway out of the car “because

knowing these friends that I’m with [they’re] about ready to get in an altercation

with whoever inside of the vehicle.” (Tr. 669.) Thomas stated that he saw Harris

get out of the front passenger seat and pull down the red mask he was wearing.

According to Thomas, when the truck sped off, it almost hit Harris, and that is when

he heard the gun shot. Although he testified that he did not see a gun, Thomas

admitted that he saw “someone shoot.” (Tr. 674.)3 He testified later that Jones did

not shoot the gun, and that he did not see either Jones or Harris holding a gun.

Thomas identified Harris as the person in State’s exhibit No. 11 — a still photo taken

from the surveillance video inside the Third District police station lobby.

Thomas admitted that he was untruthful with Detective Hudson

when he initially told him that “Brody” was involved. His testimony also conflicted

with Jones because he denied that he was in a biker gang or that they were at a biker

clubhouse prior to the incident. He denied further that he has a concealed carry

permit, carries a gun, or that he “dismantled” the gun after the shooting.

3 The state did not ask a follow-up question.
 Detective Darryl Johnson testified that he processed and

photographed the Ford following the shooting. He stated that he did not discover

any bullet holes in the truck, but the driver’s side rear passenger window was

shattered and glass was on the inside of the vehicle floor.

Despite being subpoenaed, Angel failed to appear for trial. Over

objection, the trial court allowed the state to present video from Officer Demetrius

Madison’s body camera taken immediately after the shooting in which Angel stated

that the shooter was wearing a red ski mask. According to Officer Madison, Angel

was frantic, scared, and crying. Additionally, at the time when she made this

statement, police did not have any suspects and had not yet located the Dodge.

Harris did not put forth a defense. Harris stipulated to the serious-

physical-harm element of Count 1, felonious assault, and the trial court instructed

the jury about this stipulation. During deliberations, the jury notified the court on

two occasions that they were deadlocked. After the second notification, the trial

court gave the jury a Howard Charge. Later that same day, the jury returned its

verdict of not guilty of Counts 1 and 6, but guilty of Counts 2, 3, 4, and 5, and all

attendant specifications to those counts.

Believing that the verdicts were inconsistent, Harris filed a “Civ.R. 50

JNOV,” requesting a new trial. Following a hearing, the trial court denied Harris’s

motion. At sentencing and over objection, the trial court imposed an indefinite

sentence pursuant to the Reagan Tokes Law of a minimum of 13 years in prison and

a maximum of 16 and one-half years. This appeal follows.
II. Manifest Weight of the Evidence

In his first assignment of error, Harris contends that his convictions

are against the manifest weight of the evidence because the jury reached

inconsistent verdicts, the eyewitness identification was unreliable, and witnesses

gave conflicting testimony.

Weight of the evidence concerns “the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the issue rather

than the other. * * * Weight is not a question of mathematics, but depends on its

effect in inducing belief.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). In a manifest weight analysis, the reviewing court sits as a

“thirteenth juror,” and reviews “‘the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses, and determines

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.’” Thompkins at id., quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The discretionary power to

grant a new trial should be exercised only in exceptional cases where the evidence

weighs heavily against the conviction. Thompkins at 386.

A. Inconsistent Verdicts

Without citing any case law, Harris contends that his convictions are

against the manifest weight of the evidence because the verdicts are inconsistent.
Contrary to Harris’s assertion, the fact that the jury found him guilty of felonious

assault as charged in Count 2 (caused or attempted to cause physical harm by means

of a deadly weapon) while not guilty of felonious assault as charged in Count 1

(caused serious physical harm), does not undermine the jury’s resolution of the case.

As this court has explained:

“Juries can reach inconsistent verdicts for any number of reasons,
including mistake, compromise, and leniency. * * * [I]t would be
incongruous for a defendant to accept the benefits of an inconsistent
verdict without also being required to accept the burden of such
verdicts.”

State v. Wells, 8th Dist. Cuyahoga No. 109787, 2021-Ohio-2585, ¶ 40, quoting State

v. Taylor, 8th Dist. Cuyahoga No. 89629, 2008-Ohio-1626, ¶ 10. Additionally, “[i]t

would be unfair for the defendant to have the right to appeal an inconsistent verdict

when it suits him, when the government may not.” State v. Jones, 8th Dist.

Cuyahoga No. 96901, 2012-Ohio-920, ¶ 10 (noting that the Fifth Amendment

prohibition against double jeopardy restricts the government from appealing an

acquittal even if appears erroneous). Defendants receive adequate protection

against jury “irrationality of error” by challenging the sufficiency of the evidence at

both trial and appellate levels. Id., citing U.S. v. Powell, 469 U.S. 57, 68, 105 S.Ct.

231, 83 L.Ed.2d 461 (1984). Accordingly, “courts have consistently rejected the

argument that inconsistent verdicts would render a defendant’s conviction against

the manifest weight of the evidence.” Wells at id., citing State v. Jones, 8th Dist.

Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 33, citing State v. Norman, 10th Dist.

Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 14.
 Moreover, consistency between verdicts on several counts of an

indictment is unnecessary where the defendant is convicted on one or some counts

and acquitted on others; the conviction generally will be upheld irrespective of its

rational incompatibility with the acquittal. State v. Adams, 53 Ohio St.2d 223, 374

N.E.2d 137 (1978). Each count of a multicount indictment is deemed distinct and

independent of all other counts, and thus inconsistent verdicts on different counts

do not justify overturning a verdict of guilt. See State v. Hicks, 43 Ohio St.3d 72, 78,

538 N.E.2d 1030 (1989). “The sanctity of the jury verdict should be preserved and

[sh]ould not be upset by speculation or inquiry into such matters to resolve the

inconsistency.” State v. Lovejoy, 79 Ohio St.3d 440, 444, 683 N.E.2d 1112 (1997).

In this case, any inconsistency cannot be attributed solely to the jury’s

confusion or doubts as to the adequacy of evidence. Rather, the jury, convinced that

Harris was guilty of felonious assault (knowingly caused or attempted to cause

physical harm by means of a deadly weapon) under Count 2, may have acquitted

him of felonious assault (knowingly caused serious physical harm) on Count 1 based

on compromise or leniency. Based on the record before this court, this is quite

possible because the jury notified the court on two occasions that they were

deadlocked. Moreover, because this court is not permitted to speculate about the

reason for the inconsistency when it determines the validity of a verdict, any

perceived inconsistency here is not enough to undermine the jury’s resolution of the

case based on a manifest weight of the evidence challenge.
 B. Identification and Conflicting Testimony

Harris also challenges that his convictions are against the weight of

the evidence because the testimony identifying him as the shooter was unreliable.

Specifically, he contends that the victim only identified him from the photo array

with 80 percent certainty and the testimony by Jones and Thomas was suspect.

Regarding the victim’s out-of-court identification, she admitted that

she was only 80 percent certain that the person she identified in the photo array was

the person wearing the red ski mask, whom she believed shot her. Moreover, the

victim did not definitively testify that she saw the man shoot the gun. In fact, she

admitted that she did not see a gun and did not see the man wearing the red ski mask

with a gun, yet testified that she knew that the person who wore the red ski mask

shot the gun because of the angle from which he was standing, the fact that he wore

a ski mask, and because the person was staring at her “like he wanted to do

something.” Nevertheless, at trial the victim unequivocally testified and identified

Harris as the person who shot her. The jury considered her out-of-court

identification in contrast to her testimony, and as the trier of fact, was able to assess

what weight it should give to her identification of Harris. “‘“Juries are not so

susceptible that they cannot measure intelligently the weight of the identification

testimony that has some questionable feature.”’” State v. Deal, 8th Dist. Cuyahoga

No. 92642, 2010-Ohio-153, ¶ 11, quoting State v. Coleman, 10th Dist. Franklin No.

99AP-1387, 2000 Ohio App. LEXIS 5386, 8 (Nov. 21, 2000), quoting Manson v.

Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Moreover, even
discounting her testimony and out-of-court identification, the jury was presented

with surveillance video and still photographs, and was thus able to make its own

determination if the evidence proved that Harris was the shooter.

Regarding the testimony of both Jones and Thomas, “[t]he trier of

fact is in the best position to take into account inconsistencies, along with the

witnesses’ manner, demeanor, gestures, and voice inflections, in determining

whether the proffered testimony is credible.” State v. Williams, 8th Dist. Cuyahoga

No. 103257, 2016-Ohio-5403, ¶ 33. It is undisputed that both Jones and Thomas

were untruthful to the police when they provided their initial statements.

Additionally, Jones admitted that he entered into a plea deal with the state for a

reduction in his charges. Harris’s counsel brought any inconsistencies, questionable

testimony, and self-serving motivations to the jury’s attention. “The jury was free to

believe all, part, or none of the testimony of each witness.” State v. Colvin, 10th Dist.

Franklin No. 04AP-421, 2005-Ohio-1448, ¶ 34.

Based on the foregoing, this case is not the exceptional case where the

jury clearly lost its way and created such a manifest miscarriage of justice that

requires this court to reverse Harris’s convictions and order a new trial. The jury

could not ignore the surveillance videos that captured the shooting and the videos

from the Third District police station showing Harris and his clothing. Moreover,

Jones and Thomas testified consistently with those videos that Harris was the

frontseat passenger of the Dodge and wearing the exact clothing depicted in the

police station videos. Moreover, although no one testified that they saw Harris with
a gun, Jones testified that he had seen a gun in the front passenger seat where Harris

was seated. Accordingly, based on the direct and circumstantial evidence presented,

the jury could have easily inferred that Harris was the person wearing the red ski

mask that shot at the Ford, striking the victim.

Harris’s first assignment of error is overruled.

III. Effective Assistance of Counsel

Reversal of a conviction for ineffective assistance of counsel requires

that the defendant show that counsel’s performance was deficient and that the

deficient performance prejudiced the defense to deprive the defendant of a fair trial.

State v. Nieves, 8th Dist. Cuyahoga No. 111161, 2022-Ohio-3040, ¶ 27, citing State

v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 109. Deficient

performance occurs when counsel’s performance falls below an objective standard

of reasonable representation. State v. Bell, 8th Dist. Cuyahoga No. 105000, 2017-

Ohio-7168, ¶ 23. Prejudice is found when “there is a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceedings would have been

different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

A defendant has the burden of proving ineffective assistance of

counsel and there is a strong presumption that a properly licensed trial counsel

rendered adequate assistance. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d

1128 (1985). As the Strickland Court stated, a reviewing court “must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.” Strickland at 689; see also State v. Hamblin, 37 Ohio St.3d 153, 524

N.E.2d 476 (1988). A defendant’s failure to satisfy one part of the Strickland test

negates a court’s need to consider the other. State v. Hurst, 12th Dist. Brown No.

CA2014-02-004, 2014-Ohio-4890, ¶ 7.

In his second assignment of error, Harris contends that he was denied

effective assistance of counsel, in violation of his right to counsel under the Sixth

and Fourteenth Amendments to the United States Constitution, because counsel

failed to challenge the victim’s out-of-court identification by reviving former

counsel’s motion or by filing his own motion to suppress or performing a voir dire

of the victim on the identification process.

The failure to file a motion to suppress evidence is not enough in itself

to sustain a claim for ineffective assistance of counsel. State v. Madrigal, 87 Ohio

St.3d 378, 389, 721 N.E.2d 52 (2000). “To establish ineffective assistance of counsel

for failure to file a motion to suppress, a defendant must prove that there was a basis

to suppress the evidence in question.” State v. Brown, 115 Ohio St.3d 55, 2007-

Ohio-483, 873 N.E.2d 858, ¶ 65. “‘Where the record contains no evidence which

would justify the filing of a motion to suppress, the appellant has not met his burden

of proving that his attorney violated an essential duty by failing to file the motion.’”

State v. Logan, 8th Dist. Cuyahoga No. 88472, 2007-Ohio-2636, ¶ 66, quoting State

v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980).
 The record demonstrates that Harris’s prior attorney filed a motion

for voir dire of identification witnesses and for disclosure of other evidence used in

identification. According to the record, at the time of this filing, the state had not

yet supplemented its discovery to include surveillance videos and still photographs

from the Third District and the surveillance videos obtained from the HP gas station

— this occurred after prior counsel filed the motion, but before trial counsel entered

his appearance as counsel. Accordingly, the victim’s out-of-court identification of

Harris was no longer the only evidence the state possessed that identified Harris,

placed Harris in the Dodge at the time of the shooting, and depicted what Harris was

wearing. Trial counsel may have determined that the additional media evidence

changed the defense strategy to create reasonable doubt that Harris was in fact the

shooter. Accordingly, this court will not second-guess defense counsel’s case

strategy. State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998).

In Logan, this court held that counsel’s tactical decision to discredit

the victim’s identification by thorough cross-examination rather than through

suppression or conducting voir dire was not ineffective assistance. Id. at ¶ 62-64.

Similar to Logan, this court’s review of the record reveals that counsel effectively

cross-examined the victim about her photo array identification. The victim

admitted she was only 80 percent certain that the person she identified in the photo

array was the person wearing the red ski mask, whom she believed shot her.

Moreover, the victim did not definitively testify that she saw the man shoot the gun.
In fact, she admitted that she did not see a gun or see the man wearing the red ski

mask with a gun, yet testified and identified Harris as the person who shot her.

Moreover, even if counsel was successful in suppressing the victim’s

out-of-court identification of Harris as the shooter, the state’s evidence also

consisted of testimony and surveillance videos demonstrating that Harris was a

passenger in the Dodge vehicle at the time of the shooting. Based on that evidence

alone, the jury was able to determine whether Harris was the shooter. Accordingly,

Harris cannot demonstrate that he was prejudiced by counsel’s decision not to file a

motion to suppress the victim’s out-of-court identification of Harris.

His second assignment of error is overruled.

IV. Reagan Tokes Law

In his third assignment of error, Harris contends the trial court erred

when it sentenced him to an indefinite sentence under S.B. 201, commonly referred

to as the Reagan Tokes Law, because the law is unconstitutional under the United

States and Ohio constitutions because it violates due process, the separation-of-

powers doctrine, and the right to trial by jury.4

Harris acknowledges that this court’s en banc decision of State v.

Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 17-51 (8th Dist.) rejected these

4 Neither party has raised any issue as to the imposed terms of Harris’s sentence;
therefore, any determination as to the validity of the sentence other than challenges raised
herein, is beyond the scope of this direct appeal. State v. Harper, 160 Ohio St.3d 480,
2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v. Henderson, 161 Ohio St.3d 285, 2020-
Ohio-4784, 162 N.E.3d 776, ¶ 27.
arguments that challenge the constitutionality of the Reagan Tokes Law, but

contends that Delvallie “failed to properly focus on what and how the sentencing tail

may be triggered”; thus, he contends the law violates his due process rights. We

disagree. Delvallie fully and completely addressed the concerns Harris raises, and

he has not raised any additional arguments not considered by the Delvallie en banc

court. Based on the authority of Delvallie, we summarily overrule Harris’s

challenges and overrule his assignment of error.

Judgment 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

common pleas court to carry this judgment into execution. The defendant’s

convictions having been affirmed, any bail pending appeal is terminated. Case

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.

KATHLEEN ANN KEOUGH, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and
LISA B. FORBES, J., CONCUR

N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J.,
dissenting).