State v. McInnes

[Cite as State v. McInnes, 2026-Ohio-3534.] COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA STATE OF OHIO, : Plaintiff-Appellee, : No. 115053 v. : IAN W. MCINNES, : Defendant-Appellant. : EN BANC DECISION AND JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 10, 2026 Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-681351-I Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Andrew Rogalski, Samantha Sohl, and Tasha L. Forchione, Assistant Prosecuting Attorneys, for appellee. Susan J. Moran, for appellant. EILEEN T. GALLAGHER, J.: Pursuant to App.R. 26, Loc.App.R. 26, and McFadden v. Cleveland State Univ., 2008-Ohio-4914, the en banc court determined that a conflict exists between the original panel decision in State v. McInnes, 2026-Ohio-734 (8th Dist.), and paragraph 61 in State v. Graham, 2024-Ohio-336 (8th Dist.). The sole issue accepted for en banc review is whether a police officer, when charged with excessive use of force, possesses an affirmative defense to establish that the use of force was reasonable. In the original panel decision, the panel held that a police officer bears the burden of proving a reasonable-use-of-force defense by a preponderance of the evidence. McInnes at ¶ 30-34. In paragraph 61 of Graham, the panel stated that the City was required to prove that the defendant police officer’s use of force was not reasonable under the circumstances. Graham at ¶ 61. In light of a perceived conflict between the original panel decision and paragraph 61 of Graham, we agreed to review the matter en banc to clarify this district’s law on this issue. This opinion is divided into two parts: (1) the decision of the en banc court and (2) the decision of the merit panel. The decision of the en banc court is limited to the legal question set forth above. To secure and maintain uniformity of decisions within the district, we vacate the panel decision issued on March 5, 2026, State v. McInnes, 2026-Ohio-734 (8th Dist.), and issue this decision as the final decision in this appeal. Decision of the En Banc Court R.C. 2901.05 governs burdens of proof in criminal cases and generally provides that the defendant bears the burden of proving an affirmative defense by a preponderance of the evidence. The defendant’s burden of proving an affirmative defense is subject to three enumerated exceptions, namely self-defense, defense of another, and defense of the accused’s residence. Id. Reasonable use of force in the course of a police officer’s official duties is not one of the enumerated exceptions in R.C. 2901.05(A). Therefore, we hold that a police officer bears the burden of proving, by a preponderance of the evidence, that his or her use of force was reasonable under the circumstances. Graham, 2024-Ohio-336, at ¶ 61 (8th Dist.), is overruled only to the extent it states: “Additionally, because Graham was a police officer acting in the line of duty on the night in question, the state was also required to show that the force Graham used against Martinez was not ‘reasonable’ under the totality of the circumstances.” EILEEN T. GALLAGHER, JUDGE MICHELLE J. SHEEHAN, A.J.; MARY J. BOYLE; TIMOTHY W. CLARY; LISA B. FORBES; EILEEN A. GALLAGHER; SEAN C. GALLAGHER; EMANUELLA D. GROVES; KATHLEEN ANN KEOUGH; ANITA LASTER MAYS; and MICHAEL JOHN RYAN; JJ., CONCUR DEENA R. CALABRESE, J., RECUSED Decision of the Merit Panel EILEEN T. GALLAGHER, J.: Defendant-appellant Ian W. McInnes (“McInnes”) appeals his convictions and sentence. He claims the following errors: 1. The trial court erred by creating a burden upon the appellant to establish an affirmative defense which is not required by law, violating Mr. McInnes’ right to due process and a fair trial, as provided in the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution. 2. The trial court erred in failing to dismiss Mr. McInnes’s indictment since he was shielded from criminal prosecution by qualified immunity. 3. The trial court deprived Mr. McInnis of his right to due process and a fair trial as provided in the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 16 of the Ohio Constitution and it allowed the state’s witnesses to provide inadmissible testimony regarding use of force, which was not compliant with Fourth Amendment considerations as provided in Graham v. Connor. 4. Mr. McInnes’s convictions are against the manifest weight of the evidence in violation of his right to due process as provided in the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution. 5. The evidence in this case is legally insufficient to justify Mr. McInnes’s convictions, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Ohio Constitution. 6. The court erred by denying Mr. McInnes’s right of confrontation under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution. 7. The trial court erred in allowing the use of Mr. McInnes’s Garrity statements against him in a criminal prosecution in violation of his right against self-incrimination protected by the Fifth and Fourteenth Amendments to the United States Constitution. 8. The trial court erred in failing to unseal and provide the defense with the requested grand jury transcripts to ensure the grand jury utilized the proper probable cause standard and reveal possible Garrity violations. 9. The trial court erred in imposing a sentence which was not supported by the record and was contrary to law.  We find that the trial court properly placed the burden of proving the affirmative defense of reasonableness on McInnes, by a preponderance of the evidence. We also find that the trial court properly overruled McInnes’s motion to dismiss the indictment, the State’s witnesses were permitted to give lay and expert opinions regarding the reasonableness of the force used to apprehend suspects, and that McInnes’s convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. McInnes’s guaranteed right of confrontation under the Sixth Amendment to the United States Constitution was not violated and there were no Garrity violations. McInnes was not entitled to the grand-jury transcripts, and his sentence was supported by the record and not contrary to law. Accordingly, we affirm the trial court’s judgment. I. Facts and Procedural History McInnes, a police officer, was charged along with ten other East Cleveland police officers in a 62-count indictment with three counts of attempted felonious assault, four counts of assault, four counts of interfering with civil rights, four counts of dereliction of duty, and two counts of felonious assault. The charges related to his alleged use of excessive force while interacting with four citizens on four separate dates. Prior to trial, McInnes filed a motion to dismiss the three counts of attempted felonious assault alleged in Counts 37, 42, and 46; four counts of assault alleged in Counts 38, 43, 47, and 55; and one count of felonious assault alleged in Count 52. He argued those counts should be dismissed because the grand jury was not properly instructed on whether he acted reasonably as a police officer when he exercised the use of force. McInnes also filed multiple motions to obtain the grand- jury transcripts so he could determine whether the jury had been instructed on what constitutes a “reasonable” use of force. The trial court denied the motions to dismiss and for the grand-jury transcripts, and the case proceeded to a jury trial. The witnesses at trial testified with regard to the four separate incidents involving four different individuals. Todd Carroscia (“Carroscia”), a patrol-division commander in the East Cleveland Police Department, explained the department’s policy and procedures regarding the use of force. (Tr. 559.) He explained that when an officer uses force with an individual, he or she is obligated to describe the force used and the circumstances surrounding the use of force in a report called “Form M.” (Tr. 560- 561.) According to Carroscia, the East Cleveland Police Department was “short- staffed” and the officers were “overworked.” (Tr. 603.) However, he explained that the shortage of manpower is not an excuse to break the law or to not follow the department’s policies. (Tr. 604.) Carroscia testified that he never had any issues with McInnes personally and that he made “fair calls.” (Tr. 603.) A. Zievan Foster Craig Beese (“Beese”), who worked as an East Cleveland police officer from the spring of 2016 until September 2021, testified that on February 25, 2020, he attempted to stop an individual for speeding. The individual, subsequently identified as Zievan Foster (“Foster”), refused to stop, and Beese pursued him at a high rate of speed until Foster’s vehicle hit a tree. McInnes assisted in the pursuit of Foster. After hitting the tree, Foster fled on foot behind a home where another officer, Demarcko Johnson (“Johnson”), tased him and caused him to fall to the ground. Johnson was wearing a body camera that captured video of Foster’s fall to the ground. The video, which was played for the jury and admitted into evidence as State’s exhibit No. 100, shows Foster lying face down on a driveway as McInnes approached him and appeared to kick him in the ribs before placing him in handcuffs. Beese testified that he was the supervising officer responsible for reviewing McInnes’s use of force. (Tr. 678.) Johnson told Beese about his use of the Taser, but McInnes did not tell him about the kick. (Tr. 678-683.) Once McInnes’s use of force was discovered, Beese reported it in a “Form M.” When Beese questioned McInnes about the kick, he told Beese that he slipped on a crack in the driveway and that he did not intend to kick Foster. (Tr. 686-687.) Beese thought the kick was significant because “the subject was already in control due to the Taser deployment . . . .” (Tr. 683.) Special Agent Shaun Roth (“Roth”) of the Federal Bureau of Investigation (“FBI”) testified that he investigated McInnes’s use of force as part of his assignment to the public corruption and civil rights squad. (Tr. 978.) He reviewed Johnson’s body-camera video as part of his investigation. In describing the video, he stated, “[Foster] is laying proned out, as he is instructed to do. At that time, Ian McInnes comes and kicks the individual in the side.” (Tr. 991.) Foster testified at trial that he fled from police because he was afraid they would hurt him or shoot him. (Tr. 632 and 641-642.) After being tased, Foster showed his hands to the police to let them know he was not armed. (Tr. 641.) Foster testified that even though his hands were above his head, an officer came “up and kicked me before he put me in handcuffs.” (Tr. 641.) As previously stated, Beese indicated that although Johnson reported his use of the Taser to subdue Foster, McInnes did not report the fact that he kicked Foster. (Tr. 683.) McInnes testified that he went with Johnson to report the use of force to Beese. (Tr. 1656.) McInnes further stated that when Beese asked McInnes what happened, he told him, “[H]ey, I was running. I didn’t intend to do this. I lost my footing. I was trying to catch myself.” (Tr. 1656.) The State’s expert on police conduct, Robert Prevot (“Prevot”), reviewed Johnson’s body-camera video. In his opinion, as soon as Foster was on the ground with his hands out, it was obvious that he did not have a weapon and, at that point, “he, pretty much surrendered.” (Tr. 1108.) Although Foster rolled over onto his back, he was still not a threat because he was not armed and he was “waiting to be cuffed.” (Tr. 1110.) He was not trying to run away, and he was not resisting. (Tr. 1110.) Reading from his report, Prevot opined, in relevant part: “Officer McInnes kicked Mr. Foster on the right side of his rib cage while Mr. Foster was on the ground. Mr. Foster was not attempting to flee or resist.  “The only use of force justified in this incident after he was tased was to place handcuffs on Mr. Foster and assess him for any injuries that he may have suffered in the collision. Instead, Officer McInnes used excessive use of force to potentially cause further injury to Mr. Foster. “The use of force by Mr. McInnes when he kicked Mr. Foster was objectively unreasonable.” (Tr. 1113-1114.) McInnes’s expert, Kevin Davis (Davis”), testified that McInnes’s kick “was standard practice when a person continues to resist.” (Tr. 1517.) In his opinion, the kick was reasonable under the circumstances. However, Davis admitted on cross-examination that McInnes did not report the kick to his supervisor and did not have his own body camera activated. (Tr. 1595.) It was only when Beese asked him to provide a description of what happened with Foster that McInnes reported that he slipped. (Tr. 1595.) When asked whether his expert report mentioned anything about slipping, Davis replied, “No, it does not.” (Tr. 1591.) B. Wayne Brown Roth testified that he learned of the matter involving Wayne Brown (“Brown”) because a witness published a video of the incident on social media. (Tr. 995, 998, and 1233.) No report of force had been made of the incident. (Tr. 1235.) Roth and Robert DeSimone (“DeSimone”), a special investigator with the Cuyahoga County Prosecutor’s Office, investigated the incident and learned that on February 14, 2022, Brown was present at the Best Steak & Gyro Restaurant in East Cleveland when police received a call about a violent person. Police, including McInnes, arrived on the scene and attempted to secure Brown. McInnes instructed Brown to lie down on his stomach on the ground. Brown, who suffers from mental illness, seemed confused and did not immediately comply with police orders. With repeated commands, Brown eventually got down on his knees and placed his hands behind his head. Roth explained: He put himself down on his knees and put his hands behind his back, and now you see there is nothing in his hands. At that point, you can execute the arrest just as he is. (Tr. 1001.) But instead of handcuffing Brown, McInnes kicked Brown in the back. (Tr. 1000.) Roth described the incident as follows: [J]ust watching the video, what is of significance is that the victim, Mr. Wayne Brown, is on his knees with his hands behind his back, and then he is kicked in the back slamming his head down and almost hitting the cement wall in front of him. (Tr. 1000-1001.) McInnes testified that his objective was to gain compliance and that Brown started to show compliance by dropping to one knee. (Tr. 1667.) McInnes stated, however, that Brown “reached for his leg” and that he did not know what Brown was reaching for. He explained: So when he reached for his ankle and started to drop back, I made a tactical decision to use my foot, displacing him to the ground, giving me a tactical advantage in the event he did grab a weapon. (Tr. 1668.) Both experts reviewed the video evidence and expressed their opinions to the jury. Davis explained that because Brown ignored several commands to get down on the ground and because his hands were not visible for a substantial part of McInnes’s interaction with him, it was reasonable for McInnes to consider Brown a threat. (Tr. 1532-1534.) Davis concluded that “Officer McInnes’s use of a push kick under these circumstances is within a range of reasonable police uses of force.” (Tr. 1534.) He admitted, however, that McInnes’s actions created a risk of secondary injury if Brown hit his head as a result of being kicked in the back. (Tr. 1606-1607.) Prevot acknowledged that it was initially unknown whether Brown was a threat to police when they arrived on the scene because Brown was wearing a puffy coat that might have concealed weapons. Brown was also slow to comply with McInnes’s commands. Nevertheless, Prevot opined that the potential threat Brown might have posed was removed when he got down on his knees and placed his hands behind his head. Prevot explained: Basically my opinion at that moment when he applied the force was that it was objectively unreasonable. He could have just handcuffed him, picked him up, and do what he was going to do. By kicking him and making him fall forward, he could have been a threat again. I don’t know what purpose the kick served other than to cause pain. By process of elimination, there was nothing else to do, except put him in handcuffs. (Tr. 1127.) C. Da’Shawn Allen Da’Shawn Allen (“Allen”) testified that, on October 3, 2021, he was driving a stolen vehicle when police attempted to pull him over. (Tr. 721.) Instead of stopping, Allen, who was 17 years old at the time, lead police on a high-speed chase because he “was scared.” (Tr. 722.) According to Allen, a police car repeatedly “bumped” into his car during the pursuit. (Tr. 723 and 748.) Eventually, Allen’s vehicle collided with another car, and Allen fled from the police on foot. (Tr. 723.) Allen explained that his back hurt so he stopped running, got on his knees, and put his hands up. (Tr. 724.) Police officers approached him and arrested him. Allen described the arrest as follows: I got on my knees. They told me stop resisting. I said, “I’m not resisting.” They cuffed me, picked me up, punched me in the forehead. I fell back down. They picked me up again and punched me in the forehead again. And I fell back down again. And when I fell back down, they said stop resisting. I’m not resisting. They started dragging me across the floor, start stumping me. And I couldn’t do nothing. I was handcuffed. They broke both my hands. (Tr. 724.) Allen further stated that while he was on the ground, someone kicked him in the groin and he screamed in pain. (Tr. 726-727.) Roth testified that the FBI established a tip line in October 2022, after several FBI investigations uncovered “numerous criminal activities” in East Cleveland. (Tr. 1012.) The FBI learned about Allen’s arrest and the alleged use of excessive force when his mother reported it to the tip line. (Tr. 1237.) As part of his investigation, Roth obtained records pertaining to Allen’s arrest, including the vehicle-pursuit report, docket-type records, and body- camera footage. Roth also obtained records from the Cleveland Police Department related to its investigation of the car accident that occurred in the City of Cleveland. Regarding the body-camera video, which was admitted into evidence as State’s exhibit No. 301, Roth testified that Allen can be seen “laying flat on his stomach with his hands restrained behind his back.” (Tr. 1024.) After watching the video in open court, Roth stated, “We just saw Defendant Ian McInnes strike Da’Shawn Allen in the groin with his foot while his arms were restrained behind his back.” (Tr. 1025.) When asked how he could tell that McInnes was the individual who kicked, he explained that McInnes’s face becomes visible when the video continues to play a little longer. (Tr. 1025.) McInnes was also wearing a watch, which is visible after the police lifted Allen off the ground moments after Allen was kicked in the groin. (Tr. 1026.) DeSimone also described the action depicted in State’s exhibit No. 301. He stated: First, I observed Allen on the ground, sitting there crouching with his hands up, not resisting. He was ready to be handcuffed. The officers, as far as McInnes goes — two officers were handling him already on the ground attempting to cuff him. Officer McInnes can be seen coming into view and squarely kicking him in the groin. (Tr. 1273.) When asked where Allen was positioned when McInnes approached, DeSimone replied, “He is on the ground, his hands are behind his back, face down, and his legs were open.” (Tr. 1273.) Allen also stated that two East Cleveland police officers were restraining Allen on the ground when McInnes kicked him. (Tr. 1273.) Davis believed the video quality was not sufficient to see where McInnes placed his foot. (Tr. 1543.) He also noted that Allen never complained of being struck in the groin at the time. (Tr. 1543.) When asked whether he believed McInnes acted reasonably, Davis stated: I believe that a kick to the inside of the thigh or to the leg area of Mr. Allen under these circumstances would be within a range of reasonable police actions based on the totality of the circumstances. (Tr. 1546.) Prevot offered his expert opinion on Allen’s arrest as stated in his report: “A review of the body-worn cameras in this case show Officer McInnes kicking Mr. Allen in the groin. Mr. Allen was already subdued and was not resisting or threatening anyone when he was intentionally kicked in the groin by Officer McInnes. ... “This assault was intentional, objectively unreasonable, and a violation of Mr. Allen’s civil rights. Mr. Allen screamed out in pain after he was kicked.” (Tr. 1141.) D. Bernard Bennett Bernard Bennett testified that on April 12, 2022, he fled from East Cleveland police when they attempted to effect a traffic stop of his vehicle. He led police on a high-speed chase that ended when he struck a utility pole. Bennett fled from his car on foot, and East Cleveland police continued to pursue him to the intersection of East 113th Street and St. Clair Avenue in Cleveland. During the chase, Bennett ran into a side street and was struck by a police cruiser operated by McInnes. Sergeant Ryan Fox (“Fox”), an accident reconstructionist with the Ohio State Highway Patrol, testified that he reconstructed the crash using a surveillance camera from the area, body-camera videos, and data collected from the vehicles’ black boxes. (Tr. 938-939.) Fox reviewed McInnes’s reaction time in relation to Bennett running into the street and concluded that his reaction was appropriate under the circumstances. (Tr. 965-967.) Prevot also found that without evidence to the contrary, he could not conclude that McInnes intentionally struck Bennett with his car. McInnes’s expert, Davis, agreed that McInnes’s striking of Bennett appeared to be an accident. (Tr. 1560.) E. Jury Verdict and Sentence After hearing all the evidence, the jury found McInnes not guilty of the attempted felonious assault, but guilty of assault, interfering with civil rights and dereliction of duty in connection with McInnes’s arrest of Foster; guilty of attempted felonious assault, assault, interfering with civil rights and dereliction of duty in connection with his arrest of Brown; not guilty of attempted felonious assault, but guilty of assault, interfering with civil rights and dereliction of duty in connection with the arrest of Allen; and not guilty of any of the charges pertaining to the arrest of Bennett. After merging allied offenses of similar import, the trial court sentenced McInnes to 180 days in jail on each of his assault convictions alleged in Counts 38 and 47, 180 days in jail on each of his interfering-with-civil-rights convictions alleged in Counts 40, 44, and 48, and 30 months in prison on his attempted-felonious-assault conviction alleged in Count 42. The court ordered the sentences to be served concurrently for an aggregate 30-month prison term. McInnes now appeals his convictions and sentences.  II. Law and Analysis A. Reasonableness Defense In the first assignment of error, McInnes argues the trial court erred by shifting the burden of proof onto McInnes to establish the affirmative defense that his use of force was reasonable. He contends the State bore the burden of proving, beyond a reasonable doubt, that McInnes’s use of force was unreasonable. For reasonableness to constitute an affirmative defense, it must meet the definition of either an “excuse” or “justification.” R.C. 2901.05(D)(1)(b). The term “excuse” has been defined as a “‘reason that justifies an act or omission or that relieves a person of a duty’ or a ‘defense that arises because the defendant is not blameworthy for having acted in a way that would otherwise be criminal.’” State v. Faggs, 2020-Ohio-523, ¶ 21, quoting Black’s Law Dictionary 688 (10th Ed. 2014). The term “justification” has been defined as a “‘lawful or sufficient reason for one’s acts or omissions; any fact that prevents an act from being wrongful’ or a ‘showing, in court, of a sufficient reason why a defendant acted in a way that, in the absence of the reason, would constitute the offense with which the defendant is charged.’” Id., quoting Black’s at 997. Thus, where a police officer admits to the use of force but claims the use of force was reasonable in the course of his official duties, the defense is a claim for justification or excuse. See, e.g., State v. Bolton, 2018-Ohio-1551, ¶ 20- 21 (6th Dist.) R.C. 2901.05 governs burdens of proof in criminal cases and states, in relevant part:  Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense other than self-defense, defense of another, or defense of the accused’s residence presented as described in division (B)(1) of this section, is upon the accused. R.C. 2901.05(A). The statute clearly provides that the State bears the burden of proving, beyond a reasonable doubt, all the elements of the charged offenses, and the defendant bears the burden of proving an affirmative defense, by a preponderance of the evidence. Id. The defendant’s burden of proving an affirmative defense is subject to three enumerated exceptions, namely self-defense, defense of another, and defense of the accused’s residence. Id. Reasonable use of force in the course of a police officer’s official duties is not one of the enumerated exceptions in R.C. 2901.05(A). See Bolton at ¶ 20-21. (Police officer defendant must prove his affirmative defense of justification by a preponderance of the evidence.); State v. Brelo, Cuyahoga C.P. No. CR-13-580457A, 2015 Ohio Misc. LEXIS 54, *41-43 (May 23, 2015) (Police officer must prove by a preponderance of the evidence that he was legally justified in using deadly force on the victims.). Therefore, according to the plain language of the statute, a police officer defendant bears the burden of proving, by a preponderance of the evidence, that his or her use of force was reasonable under the circumstance. The court in this case instructed the jury regarding McInnes’s affirmative defense as follows:  Defendant Ian McInnes asserts an affirmative defense that he was justified in his use of force in the exercise of his official duties as a police officer. . . . The burden of going forward with the evidence of the affirmative defense and the burden of proving this defense are upon the defendant Ian McInnes. In order to establish this defense, the defendant must prove by preponderance of the evidence that he was acting in pursuit of his official duties and that his use of force was objectively reasonable under the circumstances. ... If the defendant fails to establish by its preponderance of the evidence that his actions were justified in his use of force in the exercise of his official duties as a police officer, the State must still prove to you beyond a reasonable doubt all the elements of the crime. (Tr. 1752-1754.) The jury’s instruction correctly placed the burden of proving the reasonable-use-of-force defense on McInnes, by a preponderance of the evidence. It also properly placed the burden on the State to prove, beyond a reasonable doubt, all the elements of the offenses charged. Therefore, the first assignment of error is overruled. B. Qualified Immunity In the second assignment of error, McInnes argues the trial court erred in denying his motion to dismiss the indictment. He argues the trial court should have dismissed the case because he was shielded from liability under the doctrine of qualified immunity even if he mistakenly exceeded the amount of force necessary under the circumstances. Ordinarily, we review “a trial court’s decision on a motion to dismiss an indictment for abuse of discretion.” State v. Hudson, 2022-Ohio-1435, ¶ 19. However, when the issue presented raises a question of law, we review the trial court’s judgment de novo. Id. In a de novo review, we afford no deference to the trial court’s decision. State v. Buehner, 2021-Ohio-4435, ¶ 43 (8th Dist.). “A motion to dismiss tests the sufficiency of the indictment, without regard to the quantity or quality of evidence that may be produced at trial.” State v. Preztak, 2009-Ohio-621, ¶ 12 (8th Dist.), citing State v. Patterson, 63 Ohio App.3d 91, 111 (2d Dist. 1989). If the indictment is valid on its face, a motion to dismiss should not be granted. Id., citing State v. Eppinger, 2005-Ohio-4155, ¶ 36 (8th Dist.) (“Where a motion to dismiss requires examination of evidence beyond the face of the indictment, it must be presented as a motion for acquittal at the close of the state’s case.”). In determining whether an indictment is valid on its face, the proper inquiry is whether the allegations contained in the indictment constitute an offense under Ohio law. Eppinger at ¶ 37. McInnes argues the indictment should have been dismissed because the doctrine of qualified immunity shields him from criminal liability. “The doctrine of qualified immunity generally shields public officials performing discretionary functions from liability for civil damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Cleveland Constr., Inc. v. Cincinnati, 2006-Ohio-6452, ¶ 80 (1st Dist.), overruled on other grounds, Cleveland Constr., Inc. v. Cincinnati, 2008-Ohio-2337, citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  The doctrine of qualified immunity does not apply to criminal prosecutions; it is exclusively applicable in civil cases, particularly those brought under 42 U.S.C. 1983, to shield government officials from personal liability for damages when their conduct does not clearly violate established law. Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”). In Imbler v. Pachtman, 424 U.S. 409, 429 (1976), the Court explained that although government officials may enjoy immunity from civil liability, the public is not powerless to deter misconduct or to punish it when it occurs because government officials remain subject to criminal liability. In United States v. Gillock, 445 U.S. 360, 372 (1980), the Court explained: “Whatever may be the case with respect to civil liability generally . . . or civil liability for willful corruption . . . we have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights.” Id., quoting O’Shea v. Littleton, 414 U.S. 488, 503 (1974). See also United States v. Dee, 912 F.2d 741, 744 (4th Cir. 1990) (“Suffice it to say that sovereign immunity does not attach to individual government employees so as to immunize them from prosecution for their criminal acts.”). McInnes nevertheless cites Saucier v. Katz, 533 U.S. 194 (2001), and Pearson v. Callahan, 555 U.S. 223 (2009), in support of his claim for qualified immunity. However, both of these cases addressed the application of qualified immunity in the context of civil litigation. Pearson expressly distinguishes application of qualified immunity between civil and criminal cases, observing that “[m]ost of the constitutional issues that are present in § 1983 damages actions and Bivens cases also arise in cases in which that defense is not available, such as criminal cases . . . .[1]” Id. at 242. Therefore, Saucier and Pearson are inapplicable to the case at bar. Furthermore, Ohio law does not provide immunity from criminal liability. Although the Ohio Revised Code provides limited forms of criminal immunity in narrow contexts (e.g., for witnesses2 and statutory exemptions for officers3), no statute provides blanket immunity to police officers for assault or other forms of excessive use of force. R.C. 9.86 provides immunity to government employees and officials for negligent acts performed in their official capacities, and R.C. Ch. 2744 provides immunity to political subdivisions, but these sections only provide immunity from civil liability, not criminal liability. Indeed, in Cleveland v. Graham, 2024-Ohio-336 (8th Dist.), the court denied a police officer’s request to apply the political-subdivision immunity provided in R.C. Ch. 2744 in his criminal case, stating the question as to whether to confer immunity from criminal liability 1 A Bivens action is a lawsuit against federal law enforcement officers for money damages for violating one’s constitutional rights under color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 2 R.C. 101.44 and 2945.44. 3 R.C. 4511.191(A)(5)(b). “is best left to the legislature.” Id. at ¶ 74. The legislature has not provided immunity to police for excessive-use-of force crimes. Id. Finally, McInnes argues his indictment was defective on its face because the offenses alleged therein did not include the absence of a reasonableness finding as an element of the offenses. He contends that “[b]ecause the ‘unreasonableness’ of Mr. McInnes’s alleged action was an element of the offense, the grand jury was required to find probable cause that the ‘unreasonable’ element exists.” (Appellant’s brief p. 12.) However, McInnes was charged with, and was convicted of, attempted felonious assault in violation of R.C. 2923.02/2903.11; assault in violation of R.C. 2903.13(A); interfering with civil rights in violation of R.C. 2921.45(A); and dereliction of duty in violation of R.C. 2921.44(B). There is no “unreasonable” element in any of these offenses. And, as previously stated in the first assignment of error, reasonable use of force in the course of a police officer’s official duties is not one of the enumerated exceptions to the defendant’s burden of proving an affirmative defense as provided in R.C. 2901.05(A). Therefore, the indictment was not defective on its face for failing to allege unreasonableness as an element of the offenses. The second assignment of error is overruled. C. Expert and Lay Testimony In the third assignment of error, McInnes argues the trial court abused its discretion by admitting into evidence lay and expert testimony regarding his use of force.  The admission of evidence lies within the broad discretion of a trial court. State v. Noling, 2002-Ohio-7044, ¶ 43. We, therefore, will not disturb the trial court’s evidentiary decisions absent an abuse of discretion. Id. An abuse of discretion occurs when the trial court exercises “its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. However, “a trial ‘court does not have discretion to misapply the law.’” Morgan v. Greater Cleveland Regional Transit Auth., 2025-Ohio-1655, ¶ 64 (8th Dist.), quoting Johnson at ¶ 38. “Thus, an abuse of discretion also occurs when a court ‘“applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”’” Id., quoting Thomas v. Cleveland, 2008-Ohio-1720, ¶ 15 (8th Dist.), quoting Berger v. Mayfield, 265 F.3d 399 (6th Cir. 2001). McInnes argues the trial court erred by allowing Roth, Prevot, and DeSimone to offer expert opinions regarding the appropriate use of police force. McInnes further contends that Roth, Prevot, and DeSimone impermissibly opined on the ultimate issue of whether McInnes used excessive force against the four victims identified in the indictment. Testimony on an ultimate issue is not per se inadmissible in Ohio. Evid.R. 704 provides that “[t]testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.”  Only Prevot was officially qualified as an expert by the trial court. Roth and DeSimone testified as lay witnesses. Evid.R. 701 governs the opinion testimony by lay witnesses and states: If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. Evid.R. 702 governs expert testimony. To be admissible, expert testimony must (1) relate to scientific, technical, or other specialized knowledge; (2) assist the trier of fact to understand the evidence or to determine a fact in issue; (3) be relevant and material to an issue in the case; and (4) have a probative