State v. Harris
Citation227 N.E.3d 510, 2023 Ohio 3994
Date Filed2023-11-02
Docket21AP-678 & 22AP-124
JudgeEdelstein
Cited28 times
StatusPublished
Syllabus
AGGRAVATED BURGLARY â SUFFICIENCY â WEIGHT â FORENSIC NURSE REPORT â CRIM.R. 16(K) â COUNSEL â REAGAN TOKES LAW: Defendant's aggravated burglary conviction was supported by sufficient evidence and was not against the manifest weight of the evidence where defendant's girlfriend and girlfriend's friend both testified he trespassed in the home of girlfriend's friend by kicking in the front door and assaulting girlfriend while inside. Even if the trial court erred in allowing the forensic nurse to read inadmissible hearsay statements from her forensic medical report and in admitting a redacted version of that report as evidence, defendant did not suffer material prejudice from either because the challenged statements contained in the forensic report pertained to the felonious assault and kidnapping offensesâof which defendant was acquittedâand, even without that report, there was overwhelming evidence of his guilt as to the aggravated burglary offense. Although the state did not provide the defense with forensic nurse's CV until the first day of trial, the trial court did not abuse its discretion in modifying Crim.R. 16(K)'s requirement that expert reports and a summary of qualifications be provided 21 days before trial, for good cause shown, because defense counsel received forensic nurse's expert report months before trial, did not alert the state about the missing CV until the day of trial, and received the CV at least one day before the forensic nurse testified. Additionally, nothing in record suggests state withheld the CV in bad faith, defendant declined to avail himself of the trial court's proposed remedy of a brief (24-hour) or extended (22-day) trial continuance, and forensic nurse's testimony had minimal relevance to the state's proof of the aggravated burglary offense. Defendant also failed to establish he received ineffective assistance of counsel. Based on State v. Hacker, ____ Ohio St.3d ____, 2023-Ohio-2535, it was plain error for the trial court to sentence the defendant to a definite sentence when he was subject to an indefinite sentence under the Reagan Tokes Law. Accordingly, the defendant's nine-year prison sentence is vacated, and the matter is remanded to the trial court for resentencing in accordance with the Reagan Tokes Law.
Full Opinion (html_with_citations)
[Cite as State v. Harris,2023-Ohio-3994
.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant/ : No. 21AP-678
Cross-Appellee, No. 22AP-124
: (C.P.C. No. 20CR-3034)
v.
: (REGULAR CALENDAR)
Terrence E. Harris,
:
Defendant-Appellee/
Cross-Appellant. :
:
D E C I S I O N
Rendered on November 2, 2023
On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R.
Wilson for State of Ohio.
On brief: Carpenter Lipps & Leland LLP, and Kort
Gatterdam for Terrence E. Harris.
APPEALS from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} This is a consolidated appeal from the judgment of conviction entered by the
Franklin County Court of Common Pleas against Terrence E. Harris after a jury found him
guilty of aggravated burglary and the trial court sentenced him to nine years in prison.
{¶ 2} Plaintiff-appellant/cross-appellee, the State of Ohio, asserts on appeal that
the definite prison term imposed was contrary to law. Specifically, the state challenges the
trial courtâs judgment declaring the indefinite sentencing provisions enacted through 2018
Am.Sub.S.B. 201 (the âReagan Tokes Lawâ) to be unconstitutional and argues the trial court
committed reversible error when it imposed a definite prison sentence instead.
Nos. 21AP-678 & 22AP-124 2
{¶ 3} On cross-appeal, Mr. Harris argues his conviction is not supported by
sufficient evidence and was against the manifest weight of the evidence. He also attributes
error to the trial courtâs evidentiary rulings at his November 2021 jury trial, and further
contends he was deprived of the effective assistance of counsel at that trial.
{¶ 4} Because Mr. Harrisâs four-cross assignments of error are not well-taken and
the Supreme Court of Ohio recently held the Reagan Tokes Law is constitutional, we vacate
Mr. Harrisâs nine-year prison sentence and remand the matter for resentencing consistent
with the Reagan Tokes Law.
I. PROCEDURAL BACKGROUND
{¶ 5} On July 7, 2020, a Franklin County Grand Jury returned a three-count
indictment charging Mr. Harris with aggravated burglary, felonious assault, and
kidnapping. Because of his prior criminal convictions, repeat violent offender
specifications were included with each count. All offenses involved Mr. Harrisâs on-again,
off-again girlfriend of four years, L.A., and were alleged to have occurred at the home of
L.A.âs friend, D.D., in the early morning of June 24, 2020.
{¶ 6} Trial commenced on November 2, 2021. Two days later, the jury returned its
verdict finding Mr. Harris guilty of aggravated burglary, and not guilty of felonious assault
and kidnapping. (Nov. 4, 2021 Tr. Vol. IV at 638-42.) The trial court ordered Mr. Harris
to undergo a pre-sentence investigation and advised trial counsel he would address the
repeat violent offender specification included with the aggravated burglary count at
sentencing. (Tr. Vol. IV at 643-44.)
{¶ 7} At the December 3, 2021 sentencing hearing, the parties stipulated to Mr.
Harrisâs prior burglary conviction and, pursuant to R.C. 2941.149(B), the trial court
determined Mr. Harris was a repeat violent offender. (Dec. 3, 2021 Tr. Vol. V at 665-67.)
In addition to counsel, L.A. and Mr. Harris addressed the trial court before sentence was
imposed. (Tr. Vol. V at 670-83.)
{¶ 8} Aggravated burglary qualifies as a first-degree felony offense subject to
indefinite sentencing under the Reagan Tokes Law. See 2018 Am.Sub.S.B. No. 201
(effective March 22, 2019). As discussed more below, the Reagan Tokes Law requires a
sentencing court to impose an indefinite sentence consisting of a minimum and a maximum
prison term on individuals convicted of first- or second-degree felonies for which life
Nos. 21AP-678 & 22AP-124 3
imprisonment is not an available sentence. State v. Hacker, ____ Ohio St.3d ____, 2023-
Ohio-2535, ¶ 7, citing R.C. 2929.14(A)(1)(a) and (2)(a). Life imprisonment is not an
available sentence for an aggravated burglary offense. See R.C. 2911.11; R.C. 2929.14.
{¶ 9} At the sentencing hearing, however, the trial court noted it had previously
found the Reagan Tokes Law to be unconstitutional on the grounds cited in State v. Hursey,
Franklin C.P. No. 20 CR 004459, 2021 Ohio Misc. LEXIS 101 (Aug. 6, 2021). (Tr. Vol. V at
686.) And, the court expressly adopted and incorporated that finding into its sentencing
determination in this case. (See Jan. 3, 2022 Am. Jgmt. Entry at 2.) The trial court
therefore sentenced Mr. Harris to a definite prison term of nine years for the aggravated
burglary offense.1 (Tr. Vol. V at 687. See also Am. Jgmt. Entry.) We note that, at the time
of sentencing, neither this court nor the Supreme Court of Ohio had ruled on the
constitutionality of the Reagan Tokes Law. Thus, at the conclusion of the sentencing
hearing, the state noted its objection to the trial courtâs unconstitutionality determination
and imposition of a definite prison sentence for the record. (Tr. Vol. V at 689-90.)
{¶ 10} On December 15, 2021, the state timely appealed from the judgment of
conviction and asserts the following sole assignment of error for our review:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
FAILING TO SENTENCE [MR. HARRIS] IN COMPLIANCE WITH
S.B. 201, THE REAGAN TOKES ACT, AS REQUIRED BY ORC
2929.144 AND, THEREFORE, THE SENTENCE IS CONTRARY TO
LAW.
{¶ 11} On February 23, 2022, Mr. Harris requested leave from this court to file a
delayed cross-appeal pursuant to App.R. 5. We granted the motion on April 14, 2022. Mr.
Harris raises the following four cross-assignments of error for our review:
[I.] THE TRIAL COURT VIOLATED [MR. HARRISâS] RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A
JUDGMENT OF CONVICTION BASED ON INSUFFICIENT
EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE
1 At the December 3, 2021 sentencing hearing, Mr. Harris also entered a plea of guilty to the stipulated lesser-
included offense of attempted drug possession, a felony of the fifth degree, in case No. 20CR-2106. (Tr. Vol. V
at 647-49.) In that case, the trial court imposed a 12-month prison sentence and ordered it be served
concurrently with the 9-year prison sentence imposed in case No. 20CR-3034. (Tr. Vol. V at 688.) Neither
party appeals from the final judgment entered in case No. 20CR-2106, and we find it has no relevance to our
analysis of the issues before us in this appeal.
Nos. 21AP-678 & 22AP-124 4
EVIDENCE IN VIOLATION OF [MR. HARRISâS] RIGHTS UNDER
THE UNITED STATES AND OHIO CONSTITUTIONS.
[II.] THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED
VICTIMâS NARRATIVE STATEMENT TO THE FORENSIC NURSE
EXAMINER THEREBY VIOLATING [MR. HARRISâS] RIGHTS TO
DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE
UNITED STATES AND OHIO CONSTITUTIONS.
[III.] THE STATE OF OHIO FAILED TO COMPLY WITH RULE 16(K)
OF THE OHIO RULES OF CRIMINAL PROCEDURE BY FAILING
TO TIMELY PROVIDE A SUMMARY OF QUALIFICATIONS OF ITS
EXPERT WITNESS, AND THE TRIAL COURT SUBSEQUENTLY
ERRED AND ABUSED ITS DISCRETION IN ALLOWING THE
STATEâS EXPERT TO TESTIFY CONTRARY TO CROSS-
APPELLANTâS CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND TO A FAIR TRIAL.
[IV.] [MR. HARRIS] WAS DEPRIVED OF THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF [HIS]
RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND SECTION[S] 10
AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 12} Mr. Harrisâs four cross-assignments of error all pertain to trial-related
matters, any of which could, if sustained, render the stateâs sole assignment of error
challenging the propriety of the definite sentence imposed moot. For this reason, we first
address Mr. Harrisâs four cross-assignments of error. And because Mr. Harris attributes
error to a wide range of trial matters, the relevant facts are summarized within our analysis
of each cross-assignment of error.
II. ANALYSIS OF MR. HARRISâS CROSS-ASSIGNMENTS OF ERROR
A. First Cross-Assignment of Error
{¶ 13} In his first cross-assignment of error, Mr. Harris contends the evidence at
trial was insufficient to support his aggravated burglary conviction. He also argues his
aggravated burglary conviction was against the manifest weight of the evidence. We
disagree.
1. Controlling Law and Standard of Review
{¶ 14} The issue of whether the evidence is sufficient as a matter of law to support a
conviction involves a determination of whether the state met its burden of production at
Nos. 21AP-678 & 22AP-124 5
trial. See, e.g., State v. Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 16; State v. Frazier, 10th Dist. No. 05AP-1323,2007-Ohio-11, ¶ 7
; State v. Thompkins,78 Ohio St.3d 380, 386
(1997). We do not weigh the evidence but instead determine â âwhether, 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.â â State v. Leonard,104 Ohio St.3d 54
,2004-Ohio-6235
, ¶ 77, quoting State v. Jenks,61 Ohio St.3d 259
(1991), paragraph two of the syllabus. We essentially assume the stateâs witnesses testified truthfully and determine if that testimony and any other evidence presented at trial satisfies each element of the crime. State v. Watkins, 10th Dist. No. 16AP-142, 2016-Ohio- 8272, ¶ 31, quoting State v. Hill, 10th Dist. No. 07AP-889,2008-Ohio-4257, ¶ 41
. Thus,
evidence is sufficient to support a conviction where, if believed, that evidence would allow
any rational trier of fact to conclude that the state proved each element of the offense
beyond a reasonable doubt. Frazier at ¶ 7, citing Jenks at paragraph two of the syllabus.
{¶ 15} In contrast, a manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion. See, e.g., State v.
Richey, 10th Dist. No. 17AP-260, 2018-Ohio-3498, ¶ 50, citing Eastley v. Volkman,132 Ohio St.3d 328
,2012-Ohio-2179, ¶ 11-13
, citingThompkins at 386-87
. âAlthough evidence may be sufficient to sustain a guilty verdict, the issue of manifest weight requires a different type of analysis.â State v. Walker, 10th Dist. No. 02AP-679,2003-Ohio-986
, ¶ 43. â[W]eight of the evidenceâ 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. State v. Petty, 10th Dist. No. 15AP-950,2017-Ohio-1062, ¶ 60
, citing State v. Boone, 10th Dist. No. 14AP-87,2015-Ohio-2648
, ¶ 49, citingThompkins at 387
.
{¶ 16} When considering an appellantâs claim that a conviction is against the
manifest weight of the evidence, we sit as a âthirteenth jurorâ and may disagree âwith the
factfinderâs resolution of the conflicting testimony.â Thompkins at 387, citing Tibbs v. Florida,457 U.S. 31, 42
(1982). See also State v. Martin,170 Ohio St.3d 181
, 2022-Ohio- 4175, ¶ 26. In making this determination, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the witnessesâ credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a Nos. 21AP-678 & 22AP-124 6 new trial ordered. See, e.g., Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013- Ohio-4153, ¶ 10;Eastley at ¶ 20
;Thompkins at 387
;Martin at ¶ 26
.
{¶ 17} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding credibility of witnesses and the
weight of testimony are primarily for the trier of fact. See, e.g., State v. DeHass, 10 Ohio
St.2d 230(1967), paragraph one of the syllabus; Morris v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-131,2021-Ohio-3803, ¶ 64
, citing Watson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-606,2012-Ohio-1017
, ¶ 31, citing Seasons Coal Co., Inc. v. Cleveland,10 Ohio St.3d 77, 80
(1984). The trier of fact is best able âto view the witnesses
and observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.â Seasons Coal Co., Inc. at 80.
{¶ 18} To reverse a jury verdict as being against the manifest weight of the evidence,
a unanimous concurrence of all three judges on the court of appeals panel reviewing the
case is required pursuant to Article IV, Section 3(B)(3) of the Ohio Constitution. Bryan-
Wollman v. Domonko, 115 Ohio St.3d 291,2007-Ohio-4918
, ¶ 2-4, citing Thompkins at
paragraph four of the syllabus.
2. Analysis
{¶ 19} Mr. Harris was convicted of aggravated burglary under R.C. 2911.11(A)(1),
which provides:
No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately
occupied portion of an occupied structure, when another
person other than an accomplice of the offender is present,
with purpose to commit in the structure or in the separately
secured or separately occupied portion of the structure any
criminal offense, if * * * [t]he offender inflicts, or attempts or
threatens to inflict physical harm on another.
{¶ 20} The incident giving rise to this case occurred on the morning of June 24, 2020
at the home of L.A.âs childhood friend, D.D. (Nov. 2, 2021 Tr. Vol. II at 247-48, 324-25.)
Specifically, the indictment alleged that the âoccupied structureâ in which Mr. Harris had
trespassed was D.D.âs house, that the trespass occurred when D.D. was present, and that
Mr. Harris âattempted or threatened to inflict physical harm onâ L.A. while he was inside
of D.D.âs home on June 24, 2020. (July 7, 2020 Indictment at 1.)
Nos. 21AP-678 & 22AP-124 7
{¶ 21} On appeal, Mr. Harris does not dispute that D.D.âs house was an âoccupied
structure.â See R.C. 2911.11(C)(1); R.C. 2909.01(C). Nor does he deny entering D.D.âs home
on June 24, 2020. Instead, he contends the evidence presented at trial did not adequately
prove he used force to enter D.D.âs home or that he had a purpose to commit a crime while
inside. (Brief of Cross-Appellant at 18.) As described below, these two essential elements
of the aggravated burglary offense were generally established through the testimony of D.D.
and L.A., photographs taken by detectives of the apartment and L.A.âs injuries, and DNA
evidence.
{¶ 22} Testimony at trial established that, after spending the evening hanging out
with D.D. and her family at D.D.âs home on June 23, 2020, L.A. slept over in an upstairs
bedroom that night. (See Tr. Vol. II at 246-47, 326-27.) Of note, L.A. is the godmother of
D.D.âs two young daughters. (Tr. Vol. II at 247.) We also note that, at the time of the
incident, D.D. considered Mr. Harris to be a friend, had known him for a couple of years,
and knew he and L.A. had a romantic history. (Tr. Vol. II at 326.) Indeed, at the time of
the incident, Mr. Harris and L.A. were nearing the end of their on-again, off-again
relationship of four years, which L.A. testified ultimately ended around November 2020.
(See Tr. Vol. II at 244.)
{¶ 23} D.D. testified that Mr. Harris came into her home on the morning of June 24,
2020 without permission while D.D. and her boyfriend were asleep in one upstairs
bedroom and L.A. and D.D.âs two children were sleeping in another upstairs bedroom. (Tr.
Vol. II at 328-30. See also Tr. Vol. II at 247-48, 253.) L.A. and D.D. both recounted awaking
to someone loudly banging on the front door and then hearing a âbig boom.â (Tr. Vol. II at
248-49, 330-33.) Although neither saw Mr. Harris at the door, D.D. testified that she knew
it was Mr. Harris because, after the banging commenced, she looked outside of her
bedroom window and saw what she knew to be Mr. Harrisâs car parked outside. (Tr. Vol.
II at 330-31.)
{¶ 24} Based on what they heard, D.D. and L.A. both surmised that Mr. Harris
entered the house by kicking the front door in. (Tr. Vol. II at 248, 332-33.) Their testimony
was corroborated by photographs taken by Columbus Police Department (âCPDâ) Detective
Wayne Wright, who responded to the scene later that same day. (See Tr. Vol. II at 364-68.)
A photograph of the front doorâs cracked door frame was presented and admitted as an
Nos. 21AP-678 & 22AP-124 8
exhibit at trial. (Stateâs Ex. A-3; Tr. Vol. II at 340-41, 368-69. See also Nov. 3, 2021 Tr. Vol.
III at 536.) And, D.D. testified that she had to get her front door repaired after Mr. Harris
kicked it down and split its frame. (See Tr. Vol. II at 341-42.)
{¶ 25} D.D. attested she had not given Mr. Harris permission to enter her home that
day, and confirmed Mr. Harris did not have a key and was not on the lease for the house.
(See Tr. Vol. II at 339-41.) L.A. also confirmed she did not permit or ask Mr. Harris to come
into D.D.âs home that day. (Tr. Vol. II at 313-14.) Thus, the testimony of D.D. and L.A., if
believed, sufficiently established that Mr. Harris used force to trespass in D.D.âs home on
June 24, 2020. This is particularly true when taken in conjunction with Detective Wrightâs
photographs of the cracked front door frame. For these reasons, Mr. Harrisâs contention
that he âdid not use force to enterâ D.D.âs home is not well-taken.
{¶ 26} Mr. Harris also contends on appeal that the state failed to prove he had a
purpose to commit a crime once he entered D.D.âs home. (See Brief of Cross-Appellant at
15-18; Reply Brief of Cross-Appellant at 2-4.) But, his argument is likewise unsupported by
the record.
{¶ 27} After Mr. Harris kicked in the front door, D.D. testified that she heardâand
then sawâMr. Harris come up the stairs. (Tr. Vol. II at 333.) Of note, Mr. Harris never
claimed that person was not him. When Mr. Harris came upstairs, L.A. was hiding in the
closet of one of the upstairs bedrooms. (Tr. Vol. II at 248-49, 332-33.) At some point, D.D.
confronted Mr. Harris, and Mr. Harris asked her where L.A. was. (See Tr. Vol. II at 249,
333.) D.D. did not respond, so Mr. Harris went to look for L.A. himself. (Tr. Vol. II at 333.
See also Tr. Vol. II at 249.) L.A. left the closet to grab her phone so she could call the police.
(Tr. Vol. II at 249-50.) However, Mr. Harris saw L.A. in the upstairs bedroom before she
was able to place that call. (See Tr. Vol. II at 250.)
{¶ 28} L.A. testified that Mr. Harris âgrabbed [her] by [her] arm * * * and threw [her]
against the TV and TV stand and the closet.â (Sic.) (Tr. Vol. II at 250.) Next, she testified,
Mr. Harris âchoked [her] and then picked [her] up and threw [her] back into the TV and
the stand.â (Tr. Vol. II at 250-51.) L.A. recounted thinking at that moment she was âgoing
to die because he was choking me.â (Tr. Vol. II at 251.) But instead, L.A. briefly blacked
out and then regained consciousness while Mr. Harris was still choking her. (Tr. Vol. II at
251.) L.A. described Mr. Harris ordering her to leave D.D.âs home with him, and, when she
Nos. 21AP-678 & 22AP-124 9
refused, L.A. testified that Mr. Harris hit her, grabbed her by the hair, dragged her down
the steps, and directed her to get into his vehicle. (Tr. Vol. II at 251-53.) Ultimately, she
complied. (Tr. Vol. II at 253, 338-39.)
{¶ 29} D.D. testified at trial about seeing Mr. Harris repeatedly hit and punch L.A.
in the face while Mr. Harris and L.A. were still in the upstairs bedroom. (Tr. Vol. II at 334-
35.) However, because her two young daughters were in the bedroom while the assault was
ongoing, D.D.âs focus was on getting her two children out of that room and downstairs to
safety. (Tr. Vol. II at 335-36.) D.D. also confirmed seeing Mr. Harris drag L.A. out of the
bedroom and down the steps by her hair. (Tr. Vol. II at 337-38.) And, she recounted
hearing Mr. Harris tell L.A. he would not leave without her. (Tr. Vol. II at 338.)
{¶ 30} Ultimately, this incident was reported to law enforcement after L.A.
convinced Mr. Harris to take her to the emergency room later in the afternoon of June 24,
2020 because she was having trouble breathing. (Tr. Vol. II at 255-56.) L.A. testified that
although she promised Mr. Harris she would not disclose that he caused her injuries, she
ultimately gave the nurse a note reporting that he did. (Tr. Vol. II at 256-58.) Significantly,
Detective Wright testified that, in his experience as a domestic violence investigator, it is
not uncommon for a domestic violence victim to go straight to the hospital after an assault
has happened rather than calling 911 while it is ongoing. (See Tr. Vol. II at 373.)
{¶ 31} After disclosing the assault to a nurse at the hospital, L.A. was interviewed by
Detective Wright (Tr. Vol. II at 364-66) and examined by forensic nurse Lauren Wood (Tr.
Vol. III at 450-69) while she was still at the hospital.
{¶ 32} Detective Wright photographed L.A.âs injuries â[t]o show she had been
strangled[,]â and testified at trial about observing âsome marks on [L.A.âs] neck.â (Tr. Vol.
II at 366, 372.) Those photographs were presented at trial as Stateâs Exhibits A-7 through
A-9. (Tr. Vol. II at 371-73.) After speaking with L.A. at the hospital, Detective Wright and
other officers went to D.D.âs home to speak with other witnesses and to document the crime
scene itself. (Tr. Vol. II at 366-67.) His crime scene photographs were presented at trial as
Stateâs Exhibits A-1 through A-6. (Tr. Vol. II at 367-71.)
{¶ 33} As part of her forensic examination, Nurse Wood took a narrative statement
from L.A., collected DNA evidence from L.A. for the forensic kit, conducted a physical exam
of L.A., and took photographs of L.A.âs injuries. (See Tr. Vol. III at 454-60.) Nurse Woodâs
Nos. 21AP-678 & 22AP-124 10
forensic report was presented at trial as Stateâs Exhibit C and her photographs as Stateâs
Exhibits B-1 through B-14. (Tr. Vol. III at 452-56, 460-64.)
{¶ 34} We note that the narrative statement L.A. provided to Nurse Wood at the
hospital on June 24, 2020 was generally consistent with L.A. and D.D.âs testimony at trial
over a year later. The narrative statement indicates that L.A. described Mr. Harris kicking
in the front door; running up the stairs to look for L.A.; choking, punching, and kicking
L.A.; ordering L.A. to leave with him; and pulling L.A. down the stairs. (Stateâs Ex. C at 3.)
Nurse Wood testified about the unredacted narrative statement at trial (Tr. Vol. III at 455-
56) and confirmed that L.A. reported losing consciousness during the incident (Tr. Vol. III
at 465). Also significant were Nurse Woodâs observations of bruising and abrasions on both
sides of L.A.âs neck, facial swelling, petechia to L.A.âs eyes, dried blood in L.A.âs left ear,
bruising on L.A.âs left rib cage, and abrasions on L.A.âs left shoulderâabout which Nurse
Wood testified at trial. (See Stateâs Ex. C at 4-8; Tr. Vol. III at 460-65. See also Stateâs Exs.
B-1 through B-14.) Nurse Wood also collected DNA samples from the left side of L.A.âs neck
and the right side of her face for the medical forensic kit. (Stateâs Ex. C at 4; Tr. Vol. III at
465-69.)
{¶ 35} On March 4, 2021, law enforcement obtained a DNA sample from Mr. Harris.
(Tr. Vol. III at 524.) Thereafter, the DNA samples from the medical forensic kit performed
on L.A. were submitted to CPDâs crime lab for comparison with Mr. Harrisâs DNA sample.
(Stateâs Ex. E. See Tr. Vol. III at 521-31.) Ultimately, the CPD crime lab issued a report
finding the male DNA profile included in the sample collected from the left side of L.A.âs
neck to be consistent with Mr. Harrisâs DNA standard. (Tr. Vol. III at 529-30. See also
Stateâs Ex. E.) The male DNA profile included in the sample collected from L.A.âs right
cheek was not of sufficient quantity or quality for comparison purposes, however. (Tr. Vol.
III at 530-31.)
{¶ 36} Although Mr. Harris may not have intended to commit a criminal offense
when he went to D.D.âs houseâor even when he initially broke into the house through the
front doorâthe stateâs evidence, if believed, established that Mr. Harris formed the intent
to commit the criminal offense of assault during the trespass. In State v. Gardner, 118 Ohio
St.3d 420,2008-Ohio-2787
, the Ohio Supreme Court held that for purposes of the offense of aggravated burglary, the intent to commit a separate criminal offense may be formed Nos. 21AP-678 & 22AP-124 11 during the trespass. Id. at ¶ 33, citing State v. Fontes,87 Ohio St.3d 527
(2000), syllabus
(holding that to be guilty of aggravated burglary, âa defendant may form the purpose to
commit a criminal offense at any point during the course of a trespassâ). This remains true
irrespective of the fact that the jury found Mr. Harris not guilty of the felonious assault and
kidnapping offenses also charged by the state. And, we note the jury instructions indicated
that felonious assault, kidnapping, and/or assault were the âcriminal offenses at issue.â (Tr.
Vol. III at 610-11.)
{¶ 37} After reviewing the record, we find the stateâs evidence, if believed,
sufficiently established that during the trespassâafter Mr. Harris broke into D.D.âs house
by kicking in the front doorâMr. Harris formed the intent to assault L.A., and did, in fact,
assault L.A. Accordingly, the state established that Mr. Harris trespassed in D.D.âs home,
an occupied structure where L.A., D.D., and others were sleeping, with the purpose of
committing the criminal offense of assault, and inflicted physical harmâdefined by R.C.
2901.01(A)(3) as âany injury, illness, or other physiological impairment, regardless of its
gravity or durationââon L.A., as required to support an aggravated burglary conviction
under R.C. 2911.11(A)(1).
{¶ 38} Having found his sufficiency challenge to be without merit, we next turn to
Mr. Harrisâs contention that his aggravated burglary conviction was against the manifest
weight of the evidence.
{¶ 39} In support of that challenge, Mr. Harris contends that L.A. and D.D. were not
credible witnesses for a number of reasons, and generally posits that their testimonyâ
provided more than a year after the incidentâfeatured many inconsistencies. (Brief of
Cross-Appellant at 14-18.) He further suggests the jury made inconsistent determinations
about their credibility because it found him not guilty of the felonious assault and
kidnapping offenses, but guilty of the aggravated burglary offense. (Brief of Cross-
Appellant at 18.) But, the state was only required to prove Mr. Harris inflicted (or
attempted or threatened to inflict) âphysical harm,â as defined by R.C. 2901.01(A)(3), on
L.A. to sustain the aggravated burglary conviction. R.C. 2911.11(A)(1). In contrast, both the
kidnapping and felonious assault offenses Mr. Harris was charged with required proof of
âserious physical harm,â as defined by R.C. 2901.01(A)(5), which is markedly different. See
Nos. 21AP-678 & 22AP-124 12
R.C. 2905.01(A)(3); R.C. 2903.11(A)(1). For this reason, Mr. Harrisâs contention that the
jury made inconsistent determinations is not well-taken.
{¶ 40} Turning to Mr. Harrisâs credibility arguments, we first acknowledge that
there were minor inconsistencies between the testimony presented at trial. For instance,
where D.D. was standing when Mr. Harris entered the home and how long the entire
incident lasted. (See Brief of Cross-Appellant at 15-16.) But, even though conflicting
testimony was presented at trial, a defendant âis not entitled to a reversal on manifest
weight grounds merely because inconsistent evidence was presented.â State v. Rankin,
10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. See also State v. J.E.C., 10th Dist. No. 12AP-584,2013-Ohio-1909
, ¶ 42.
{¶ 41} It is well-established that a jury may consider conflicting testimony from a
witness in determining credibility and the persuasiveness of the account by either
discounting or otherwise resolving the discrepancies. See, e.g., State v. Taylor, 10th Dist.
No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing Midstate Educators Credit Union, Inc. v. Werner,175 Ohio App.3d 288
,2008-Ohio-641, ¶ 28
(10th Dist.). â âThe finder of fact can accept all, part or none of the testimony offered by a witness, whether it is expert opinion or eyewitness fact, and whether it is merely evidential or tends to prove the ultimate fact.â â Petty,2017-Ohio-1062 at ¶ 63
, quoting State v. Mullins, 10th Dist. No. 16AP-236, 2016- Ohio-8347, ¶ 39. See also State v. Mann, 10th Dist. No. 10AP-1131,2011-Ohio-5286
, ¶ 37, quoting State v. Nivens, 10th Dist. No. 95APA09-1236,1996 Ohio App. LEXIS 2245
, *7
(May 28, 1996) (â âWhile [a factfinder] may take note of the inconsistencies and resolve or
discount them accordingly, * * * such inconsistencies do not render defendantâs conviction
against the manifest weight or sufficiency of the evidence.â â).
{¶ 42} Based on our review of the record, we conclude that D.D.âs testimony, L.A.âs
testimony, photographic evidence, medical evidence, and DNA evidence presented at trial
were consistent in many material respects. The stateâs evidence credibly and consistently
established that Mr. Harris forcibly broke into D.D.âs house through the front door without
permission and while others were present, looked for L.A. upon his entry, and assaulted
L.A. while he was inside of the home. On appeal, Mr. Harris does not contend the stateâs
evidence was inconsistent in any of these key respects.
Nos. 21AP-678 & 22AP-124 13
{¶ 43} We also recognize that some evidence presented at trial could have cast doubt
upon the credibility of L.A. and/or D.D. The record reflects, however, that Mr. Harrisâs trial
counsel presented these credibility concerns to the jury through his cross-examination of
multiple witnesses at trial. He called into question the memories of L.A. and D.D. by
pointing out they had been drinking the night before. (Tr. Vol. II at 307, 344-46. See Brief
of Cross-Appellant at 14, 17.) More narrowly, Mr. Harrisâs trial counsel attacked L.A.âs
credibility by emphasizing L.A.âs alcohol dependencyâlikely related to her untreated PTSD
from military serviceâto which, we note, L.A. freely admitted. (Tr. Vol. II at 277-78, 305-
08, 345-48, 357-58. See Brief of Cross-Appellant at 14, 17.) L.A. conceded she had been
drinking the night before the incident and acknowledged she did not remember, at the time
of trial, all conversationsâincluding text message exchanges between Mr. Harris and L.A.â
that took place in the hours preceding the June 24, 2020 incident (Tr. Vol. II at 306-08).
But, L.A. also unequivocally testified she was not impaired when the incident occurred on
the morning of June 24, 2020. (Tr. Vol. II at 313.)
{¶ 44} Mr. Harris also cites to D.D. and L.A.âs failure to call 911 during the incident
to suggest their testimony about the incident was false. (See Brief of Cross-Appellant at 15-
17.) But there are many other reasons a person may not call 911âincluding, as Detective
Wright recognized, in domestic violence situations like this (see Tr. Vol. III at 373)âand
any implication about the import of such failure is ultimately undermined by the fact that
L.A. went to the hospital later that same day and reported the assault.
{¶ 45} â â[W]here a factual issue depends solely upon a determination of which
witnesses to believe, that is the credibility of witnesses, a reviewing court will not, except
upon extremely extraordinary circumstances, reverse a factual finding * * * as being against
the manifest weight of the evidence.â â In re L.J., 10th Dist. No. 11AP-495, 2012-Ohio-1414, ¶ 21, quoting In re Johnson, 10th Dist. No. 04AP-1136,2005-Ohio-4389, ¶ 26
. The jury, as
trier of fact, was in the best position to consider the discrepancies in the testimony
regarding the events that took place on June 24, 2020. The jury was also in the best position
to evaluate the credibility of L.A. and D.D.âs testimony about Mr. Harrisâs actions. The jury
was likewise free to reject the implication by Mr. Harrisâs trial counsel that L.A. and D.D.
were not credible witnesses or otherwise failed to provide truthful testimony.
Nos. 21AP-678 & 22AP-124 14
{¶ 46} The balance of Mr. Harrisâs arguments in support of his first cross-
assignment of error generally pertain to the absence of evidence that might be expected at
trial. He takes issue with detectivesâ failure to collect evidence from L.A.âs phone regarding
conversations she had with Mr. Harris prior to his arrival at D.D.âs home. (Brief of Cross-
Appellant at 14.) Setting aside the speculative nature of this evidence, it follows that Mr.
Harris would have had access to the same messages on his phone, yet those were not
produced by his counsel as evidence at trial. Mr. Harris also speculates about whether the
front door had pre-existing damage, but that speculation does not refute the testimony
about Mr. Harris repeatedly banging on the door and entering D.D.âs home without
permission. (See Brief of Cross-Appellant at 15.) Mr. Harris also conjectures that because
L.A. sustained only minor injuriesâwhen more serious injuries would be expected from
L.A.âs description of eventsâher credibility was somehow undermined. (Brief of Cross-
Appellant at 17-18.) But, the absence of expected evidence is not compelling when it comes
to our evaluation of the manifest weight challenge Mr. Harris makes on appeal.
{¶ 47} To assess the credibility of the stateâs witnesses and evidence, the jury, as the
trier of fact, had sufficient information about the factual inconsistencies, use of alcohol the
night before the incident, L.A.âs history with alcohol, and the relationship between D.D.,
L.A., and Mr. Harris. Mr. Harrisâs defense counsel also emphasized the absence of evidence
one might expect would be presented in this type of case. While Mr. Harris did not testify,
the defenseâs theories at trial were that (1) L.A. asked Mr. Harris to pick her up from D.D.âs
home but she was too drunk to remember (see Tr. Vol. II at 284-85, 302, 306-08); (2) Mr.
Harris came to D.D.âs home to retrieve L.A. because L.A. told him she had been drinking
and Mr. Harris knew she should not be (see Tr. Vol. II at 346-48); (3) Mr. Harris was
actually invited inside D.D.âs home and D.D.âs front door frame was damaged prior to his
arrival (see Tr. Vol. II at 342-47); (4) at least some of L.A.âs injuries were pre-existing (see
Tr. Vol. II at 302-04), L.A. and Mr. Harris had a history of physicality between them (see
Tr. Vol. II at 349); and (5) L.A.âs injuries were not traumatic or serious (see Tr. Vol. II at
303-05, 348-57). Ultimately, the jury did not find Mr. Harrisâs theories compelling enough
to render a not guilty verdict on the aggravated burglary offense.
{¶ 48} After reviewing the record and for the reasons set forth above, we cannot say
this is one of the rare cases where the trier of fact clearly lost its way in believing the
Nos. 21AP-678 & 22AP-124 15
testimony of D.D. and L.A. when it found Mr. Harris guilty of aggravated burglary.
Accordingly, we conclude Mr. Harrisâs conviction is not against the manifest weight of the
evidence.
{¶ 49} For these reasons, Mr. Harrisâs first cross-assignment of error is overruled.
B. Second Cross-Assignment of Error
{¶ 50} In his second cross-assignment of error, Mr. Harris contends the trial court
erred in allowing Nurse Wood to read into the record the unredacted narrative statement
L.A. provided at the hospital on June 24, 2020. When the trial prosecutor asked Nurse
Wood to read this narrative statement during her direct examination testimony, Mr.
Harrisâs trial counsel âobject[ed] to it as hearsay.â (Tr. Vol. III at 454.) The trial prosecutor
conceded it was hearsay but contended that because it contained statements made by L.A.
to Nurse Wood for purposes of medical diagnosis or treatment, the narrative statement in
Nurse Woodâs forensic report was admissible under the hearsay exception provided in
Evid.R. 803(4). (Tr. Vol. III at 454-55.) Mr. Harrisâs trial counsel did not argue otherwise,
so the trial court permitted Nurse Wood to read the entire unredacted narrative statement
during her trial testimony. (See Tr. Vol. III at 454-56.) It stated as follows:
I woke up at a friendâs house to someone banging on the door, then
you could hear someone kicking the door and it was him. Clarified as
Terrence. He kicked in the door. He ran up the steps looking for me,
but I hid in the closet. I heard him arguing with my friend and her
boyfriend so I came out so thatâs when he started assaulting me,
punching me, choking me, kicking me. He said, letâs go. I said[,] Iâm
not going with you[,] so he pulled me down the steps. To diffuse the
situation outside I went and got in the back seat. Then went to my
house. My house was destroyed. He kicked in my door as well. The TVs
were all the - - off the wall, I couldnât find my iPad. I said, where is my
iPad? He said[,] I got everything thatâs valuable to you. I said, I need
to go to the emergency room Iâm having a panic attack and thatâs when
he brought me here.
(Tr. Vol. III at 455-56.)
{¶ 51} At the close of the stateâs case, the trial court reviewed the stateâs proffered
trial exhibits. (See Tr. Vol. III at 536-40.) At that time, the trial prosecutor conceded that
not all statements contained in the narrative statement from Nurse Woodâs forensic report
were admissible as statements for purposes of medical diagnosis or treatment under
Nos. 21AP-678 & 22AP-124 16
Evid.R. 803(4). (See Tr. Vol. III at 537-38.) Thus, the state offered to redact the following
sentences from the forensic report, which was presented as Stateâs Exhibit C:
Then went to my house. My house was destroyed. He kicked
in my door as well. The TVs were all the - - off the wall, I
couldnât find my iPad. I said, where is my iPad? He said[,] I
got everything thatâs valuable to you.
(Tr. Vol. III at 455-56. Compare Tr. Vol. III at 536-37, with Stateâs Ex. C.)
{¶ 52} Significantly, Mr. Harrisâs trial counsel approved those redactions and
indicated he had no objection to the trial courtâs admission of Stateâs Exhibit CâNurse
Woodâs forensic report containing the redacted narrative statement provided by L.A. (Tr.
Vol. III at 537.)
1. Scope of Review
{¶ 53} Before analyzing the admissibility of this evidence, we must outline the scope
of our review. On appeal, Mr. Harris asserts the trial court erred and abused its discretion
by permitting Nurse Wood to read the unredacted narrative statement during her trial
testimony and in admitting the redacted narrative statement as Stateâs Exhibit C. He
generally contends the narrative statement should have been excluded from trial because it
contained statements that could not be attributed to medical treatment or diagnosis and
was therefore inadmissible hearsay, was needlessly cumulative, and/or improperly
bolstered L.A.âs credibility. (Brief of Cross-Appellant at 19-24.)
{¶ 54} Mr. Harrisâs trial counsel did not raise or substantively address any of these
specific grounds in the court below. Evid.R. 103(A)(1) requires that a party seeking to
exclude evidence state âa timely objection or motion to strike * * * [that includes] the
specific ground of objection, if the specific ground was not apparent from the context.â See
also State v. Conway, 109 Ohio St.3d 412,2006-Ohio-2815
, ¶ 80, citing State v. Tibbetts,92 Ohio St.3d 146, 161
(2001), citing State v. Mason,82 Ohio St.3d 144, 159
(1998). At
trial, Mr. Harrisâs counsel timely objected to Nurse Wood reading the unredacted narrative
statement from her forensic report, but only stated âhearsayâ as the specific basis for his
objection. (Tr. Vol. III at 454.) His trial counsel did not address the stateâs Evid.R. 803(4)
hearsay exception argument in response to that objection and did not object to the
Nos. 21AP-678 & 22AP-124 17
admission of the forensic report containing the redacted narrative statement as evidence at
the close of trial. (Tr. Vol. III at 536-37.)
{¶ 55} In any event, we nonetheless determine that the basis for Mr. Harrisâs
objection to Nurse Woodâs testimony reading from the unredacted narrative statement was
impermissible hearsay. But, Mr. Harrisâs failure to renew his objection to the admission of
the redacted report forfeits all but plain error on appeal. See, e.g., State v. Payne, 114 Ohio
St.3d 502,2007-Ohio-4642
, ¶ 23. Indeed, it is well-established that â[g]enerally, when a party fails to renew an objection at the time exhibits are admitted into evidence, that party waives the ability to raise the admission as error on appeal, unless plain error is shown.â Odita v. Phillips, 10th Dist. No. 09AP-1172,2010-Ohio-4321
, ¶ 56, citing Nicula v. Nicula, 8th Dist. No. 84049,2009-Ohio-2114
. See also State v. Smith,80 Ohio St.3d 89, 107
(1997).
{¶ 56} Based on the foregoing, we conclude that Mr. Harris preserved error as to
Nurse Woodâs reading of the subsequently redacted sentences from the narrative statement
contained in her report. (Compare Tr. Vol. III at 455-56, with Stateâs Ex. C and Tr. Vol. III
at 536-37.) But, he has forfeited all but plain error in regard to the remainder of the
narrative statement, as well as the âneedlessly cumulativeâ and âimproper bolsteringâ
issues he presents for the first time on appeal.
2. Inadmissible Hearsay Analysis
{¶ 57} Although L.A.âs narrative statement to Nurse Wood contained hearsay, the
trial court concludedâwithout, the record suggests, first reviewing itâthat the entire
narrative statement was admissible under Evid.R. 803(4). (See Tr. Vol. III at 454-56.)
{¶ 58} Evid.R. 801(C) defines âhearsayâ as âa statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.â Hearsay is generally inadmissible unless an exception applies.
Evid.R. 802. Pertinent here, Evid.R. 803 excludes various items from the hearsay rule,
âeven though the declarant is available as a witness,â including â[s]tatements made for
purposes of medical diagnosis or treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to diagnosis or treatment.â
Evid.R. 803(4). The term âmedical diagnosisâ in Evid.R. 803(4) includes both physical and
Nos. 21AP-678 & 22AP-124 18
mental health diagnoses. State v. R.L.R., 10th Dist. No. 18AP-971, 2020-Ohio-4577, ¶ 16, citing In re S.A., 12th Dist. No. CA2017-07-092,2017-Ohio-8792, ¶ 41
. See also State v. Arnold,126 Ohio St.3d 290
,2010-Ohio-2742, ¶ 33-44
.
{¶ 59} â â[Evid.R.] 803(4) encompasses statements made by persons who bring the
patient to the hospital or doctorâs office, as long as the third personâs statements are in
subjective contemplation of treatment or diagnosis. * * * Where, however, circumstances
indicate the third [person] * * * is merely speculating as to facts relating to the injury,
exclusion may be warranted since the essential element of reliability is not present.â â State
v. Thompson, 2d Dist. No. 22984, 2010-Ohio-1680, ¶ 24, quoting Weissenberger, Ohio Evidence Courtroom Manual 583 (2008). See also State v. Airwyke, 11th Dist. No. 2006- T-0073,2007-Ohio-3199, ¶ 21
. The hearsay exception provided by Evid.R. 803(4) is limited to those statements made by the patient (or third party who brought the patient to the medical facility) that are reasonably pertinent to an accurate diagnosis and should not be a conduit through which matters of no medical significance would be admitted. State v. Boston,46 Ohio St.3d 108, 121
(1989).
{¶ 60} â[A] trial court has broad discretion in the admission and exclusion of
evidence and unless it has clearly abused its discretion and the defendant has been
materially prejudiced thereby, [an appellate] court should be slow to interfere.â State v.
Hymore, 9 Ohio St.2d 122, 128(1967). âThe Ohio Supreme Court has held that the erroneous admission of inadmissible hearsay that is cumulative to properly admitted testimony constitutes harmless error.â Peffer v. Cleveland Clinic Found., 8th Dist. No. 94356,2011-Ohio-450
, ¶ 28, citing State v. Williams,38 Ohio St.3d 346
(1988).
{¶ 61} In this case, the trial prosecutor recognized at the close of its case that
portions of L.A.âs narrative statement to Nurse Woodâwhich were read by Nurse Wood
during her direct examinationâwere not actually made for the purposes of seeking medical
treatment or diagnosis. (See Tr. Vol. III at 536-37.) The specific statements identified by
the trial prosecutor were as follows:
Then went to my house. My house was destroyed. He kicked
in my door as well. The TVs were all the - - off the wall, I
couldnât find my iPad. I said, where is my iPad? He said[,] I
got everything thatâs valuable to you.
Nos. 21AP-678 & 22AP-124 19
(Compare Tr. Vol. III at 455-56, with Stateâs Ex. C and Tr. Vol. III at 536-37.) For this
reason, the trial prosecutor redacted these statements from Nurse Woodâs forensic report
before it was admitted as an exhibit at trial. (See Tr. Vol. III at 536-37; Stateâs Ex. C.)
{¶ 62} On review, we agree that these statements were arguably not made for
purposes of L.A.âs medical treatment and diagnosis. Thus, they were not admissible under
Evid.R. 803(4). But even assuming the admission of such testimony was improper, we
nonetheless find it does not rise to the level of prejudicial error. Mr. Harrisâs aggravated
burglary conviction stemmed from his actions at D.D.âs homeânot what was alleged to have
transpired at L.A.âs home. (See Indictment.) Moreover, L.A. testified and was subject to
cross-examination about the events which these statements concern. (See Tr. Vol. II at 255-
57.) And, arguably, the first four sentences may have been otherwise admissible as other-
acts evidence under Evid.R. 404(B) and the last sentence as a party-opponent admission
under Evid.R. 801(D)(2) or statement against interest under Evid.R. 803(3).
{¶ 63} For these reasons, we conclude thatâeven if erroneousâMr. Harris did not
suffer material prejudice from the admission of this testimony given the facts and
circumstances of this case.
3. Plain Error Analysis
{¶ 64} As to the remaining issues under Mr. Harrisâs second cross-assignment of
error, we do not find plain error.
{¶ 65} Plain error is error that affects substantial rights. Crim.R. 52(B). For the
plain error doctrine to apply, the party claiming error must establish (1) that â âan error, i.e.,
a deviation from a legal ruleâ â occurred, (2) that the error was â âan âobviousâ defect in the
trial proceedings,â â and (3) that this obvious error affected substantial rights, i.e., the error
â âmust have affected the outcome of the [proceedings].â â State v. Rogers, 143 Ohio St.3d
385,2015-Ohio-2459
, ¶ 22, quoting State v. Barnes,94 Ohio St.3d 21, 27
(2002). In determining whether plain error occurred, we must examine the alleged error in light of all of the evidence properly admitted at trial. State v. Hill,92 Ohio St.3d 191, 203
(2001). Plain error should be found âonly in exceptional circumstances and only to prevent a manifest miscarriage of justice.âId.,
citing State v. Long,53 Ohio St.2d 91
(1978), paragraph three of the syllabus. See also Schade v. Carnegie Body Co.,70 Ohio St.2d 207, 209
(1982) (âA
âplain errorâ is obvious and prejudicial although neither objected to nor affirmatively waived
Nos. 21AP-678 & 22AP-124 20
which, if permitted, would have a material adverse [e]ffect on the character and public
confidence in judicial proceedingsâ).
{¶ 66} Even assuming the redacted narrative statement still contained some
statements not made for purposes of medical treatment and diagnosis, any arguable error
the trial court committed in admitting those statements was harmless and therefore did not
affect Mr. Harrisâs substantial rights. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio- 2787, ¶ 78. As Mr. Harris acknowledges in his appellate brief, the redacted narrative statement contained in Nurse Woodâs forensic report simply repeated what L.A. stated during her direct in-court testimony at trial. (See Brief of Cross-Appellant at 22-23.) â âAny error in the admission of hearsay is generally harmless where the declarant of the hearsay statement is cross-examined on the same matters and the seemingly erroneous evidence is cumulative in nature.â â In re M.E.G., 10th Dist. No. 06AP-1256,2007-Ohio-4308, ¶ 32
, quoting State v. Holloman, 10th Dist. No. 06AP-01,2007-Ohio-840, ¶ 2
. L.A. testified at
trial in open court and was subject to cross-examination. Thus, the jury had the
opportunity to view the witness and to assess L.A.âs credibility. Accordingly, any arguable
error that may have occurred in this case concerning the testimony of Nurse Wood and
admission of her redacted forensic report was harmless and does not give rise to plain error.
{¶ 67} Mr. Harris further contends that, even if admissible, testimony and evidence
about the redacted narrative statement was needlessly cumulative under Evid.R. 403(B)
because L.A. âalready testified as to what allegedly happened.â (Brief of Cross-Appellant at
23.) Evid.R. 403(B) provides: âAlthough relevant, evidence may be excluded if its probative
value is substantially outweighed by considerations of undue delay, or needless
presentation of cumulative evidence.â We note, however, that âEvid.R. 403(B) does not
require exclusion of cumulative evidence. The court has discretion to admit or exclude it.â
State v. Campbell, 69 Ohio St.3d 38, 51(1994). See also State v. Obermiller,147 Ohio St.3d 175
,2016-Ohio-1594, ¶ 59
. Thus, the mere fact that evidence is repetitive does not rise to
the level of reversible error unless âthe defendant has been materially prejudiced thereby.â
Id. at ¶ 61. Because it is clear Mr. Harrisâs trial strategy was to attack L.A.âs credibility, we
cannot say that L.A.âs prior consistent statements to Nurse Wood about her injuries were
needlessly cumulative. Furthermore, they were clearly relevant evidence of the felonious
assault offense for which Mr. Harris was also charged.
Nos. 21AP-678 & 22AP-124 21
{¶ 68} We therefore do not believe the trial court erred by allowing the state to
introduce cumulative evidence under the facts and circumstances of this case. But, even
assuming it did, we cannot say the admission of this cumulative evidence materially
prejudiced Mr. Harris.2 Even without the narrative statement, there was overwhelming
evidence of guilt as to the aggravated burglary offense. Both D.D. and L.A. testified they
heard someone kick in D.D.âs front door, and photographic evidence of D.D.âs split door
frame corroborated their account. Both D.D. and L.A. testified that Mr. Harris entered
D.D.âs home, and Mr. Harris did not refute that claim at trial. Although Mr. Harris
maintained he had been permitted to enter D.D.âs home, D.D. unequivocally testified
otherwise. Furthermore, both D.D. and L.A. recounted Mr. Harris looking for L.A.
immediately upon his entry into D.D.âs home and, upon finding her, assaulting L.A. inside
of D.D.âs home. And, at trial, the state presented photographs, medical records, and
medical testimony about the injuries L.A. presented with at the hospital.
{¶ 69} Accordingly, based upon the foregoing reasons, we overrule Mr. Harrisâs
second cross-assignment of error.
C. Third Cross-Assignment of Error
{¶ 70} In his third cross-assignment of error, Mr. Harris argues the trial court erred
in allowing the state to present expert testimony from Nurse Wood because the state failed
to timely provide Mr. Harrisâs trial counsel with a summary of Nurse Woodsâs
qualifications, as required by Crim.R. 16(K).
1. Controlling Law and Standard of Review
{¶ 71} Crim.R. 16 governs discovery and inspection in criminal cases. When a
discovery violation occurs, the trial court âmay order such party to permit the discovery or
inspection, grant a continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may make such other order as it deems just under the
2 Although Mr. Harris generally contends that it âconstituted improper bolstering of the Stateâs key witness[,]
[L.A.,]â he does not cite to any authority to support his contention that the bolstering here was improper. (See
Brief of Cross-Appellant at 23-24.) In fact, courtsâincluding this oneâhave held that â â[a] party may
introduce testimony to âbolsterâ or corroborate another witnessâs testimony as long as the testimony is
relevant and not objectionable on specific evidentiary grounds.â â State v. J.W., 10th Dist. No. 12AP-345, 2013-
Ohio-804, ¶ 22, quoting State v. Hurst, 10th Dist. No. 98AP-1549, 2000 Ohio App. LEXIS 816(Mar. 7, 2000). See also State v. Culp, 9th Dist. No. 26188,2012-Ohio-5395, ¶ 30
(evidence corroborating victimâs testimony is relevant to the victimâs credibility). Nos. 21AP-678 & 22AP-124 22 circumstances.â Crim.R. 16(L)(1). âA trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery.â Lakewood v. Papadelis,32 Ohio St.3d 1
(1987), paragraph two of the syllabus. Violations of Crim.R. 16 by the state constitute reversible error âonly when there is a showing that (1) the prosecutionâs failure to disclose was a willful violation of the rule, (2) foreknowledge of the information would have benefited the accused in the preparation of his defense, and (3) the accused suffered some prejudicial effect.â State v. Joseph,73 Ohio St.3d 450, 458
(1995).
{¶ 72} A trial court has broad discretion over discovery matters, which means we
review a trial courtâs ruling on a claimed discovery violation under Crim.R. 16 for an abuse
of discretion. State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313,2008-Ohio-6200
, ¶ 27. â[A]buse of discretion connotes that the courtâs attitude is unreasonable, arbitrary or unconscionable.â (Internal quotations omitted.) State v. Weaver, ___Ohio St.3d___,2022-Ohio-4371, ¶ 24
, quoting State v. Gondor,112 Ohio St.3d 377
,2006-Ohio-6679
, ¶ 60, quoting State v. Adams,62 Ohio St.2d 151, 157
(1980). âA decision is unreasonable if there is no sound reasoning process that would support the decision.â (Internal quotations omitted.) Fernando v. Fernando, 10th Dist. No. 16AP-788,2017-Ohio-9323, ¶ 7
, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,50 Ohio St.3d 157, 161
(1990). A decision is arbitrary if it is made âwithout consideration of or regard for facts [or] circumstances.â (Internal quotations omitted.) State v. Hill, ___Ohio St.3d___,2022-Ohio-4544, ¶ 9
, quoting State v. Beasley,152 Ohio St.3d 470
,2018-Ohio-16, ¶ 12
, quoting Blackâs Law Dictionary 125 (10th Ed.2014). A decision may also be arbitrary if it lacks any adequate determining principle and is not governed by any fixed rules or standards. SeeBeasley at ¶ 12
, citing Dayton ex rel. Scandrick v. McGee,67 Ohio St.2d 356, 359
(1981), citing Blackâs Law Dictionary 96 (5th Ed.1979). See also State v. Hackett,164 Ohio St.3d 74
,2020-Ohio-6699, ¶ 19
. A decision is unconscionable if it âaffronts the sense of justice, decency, or reasonableness.âFernando at ¶ 7
, citing Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. No. 08AP-69,2008-Ohio-3567, ¶ 11
.
Nos. 21AP-678 & 22AP-124 23
{¶ 73} An abuse of discretion may also be found where a trial court âapplies the
wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous
findings of fact.â Thomas v. Cleveland, 176 Ohio App.3d 401,2008-Ohio-1720, ¶ 15
(8th
Dist.). See also New Asian Super Mkt. v. Jiahe Weng, 10th Dist. No. 17AP-207, 2018-Ohio-
1248, ¶ 16.
2. Analysis
{¶ 74} On the first day of trial, Mr. Harrisâs counsel informed the trial court that the
state failed to provide him with a copy of Nurse Woodâs curriculum vitae (âCVâ) 21 days
prior to trial. (Nov. 1, 2021 Tr. Vol. I at 7.) Although Mr. Harris concedes on appeal that
the state timely provided defense counsel with Nurse Woodâs forensic report (Brief of
Cross-Appellant at 29), he nonetheless argues that, pursuant to Crim.R. 16(K)âs mandatory
language, the trial court was required to exclude Nurse Woodâs testimony at trial due to the
stateâs failure to timely produce her CV.
{¶ 75} Crim.R. 16(K) provides:
An expert witness for either side shall prepare a written report
summarizing the expert witnessâs testimony, findings,
analysis, conclusions, or opinion, and shall include a
summary of the expertâs qualifications. The written report
and summary of qualifications shall be subject to disclosure
under this rule no later than twenty-one days prior to trial,
which period may be modified by the court for good
cause shown, which does not prejudice any other
party. Failure to disclose the written report to
opposing counsel shall preclude the expertâs
testimony at trial.
(Emphasis added.)
{¶ 76} The purpose of Crim.R. 16(K) is to prevent âeither party from avoiding
pretrial disclosure of the substance of expert witnessâs testimony by not requesting a written
report from the expert, or not seeking introduction of a report.â Crim.R. 16(K), 2010 Staff
Notes. In promoting âmore open discoveryâ in criminal cases, Crim.R. 16(K)âs aim is to
level the lopsided playing field by strengthening the defendantâs right to know the evidence
the state will present against him or her at trial. See State v. Boaston, 160 Ohio St.3d 46,2020-Ohio-1061, ¶ 44
.
Nos. 21AP-678 & 22AP-124 24
{¶ 77} After defense counsel raised this issue at trial, the state did not dispute that
it failed to provide defense counsel with Nurse Woodâs CV in accordance with Crim.R.
16(K). (See Tr. Vol. I at 10.) But, the trial prosecutor pointed out that Mr. Harrisâs trial
counsel timely received Nurse Woodâs report and emphasized that, under the plain
language of the rule, exclusion of an expert witnessâs testimony is only mandated when an
expertâs reportânot CVâis not timely disclosed. (See Tr. Vol. I at 9-10.)
{¶ 78} To remedy the belated production of Nurse Woodâs CV, the trial court
suggested a 24-hour continuance. (Tr. Vol. I at 14.) But, in rejecting the trial courtâs
proposal, Mr. Harrisâs trial counsel stated as follows:
Your Honor, what I have in the report, and for the record, I do
have the report and itâs one that I would expect to be filled out
as part of a medical examination. What I donât have is the
qualifications. And I think, Your Honor, that an extra 24-hour
period might allow me to review some of the qualifications
that this nurse may have, but, Your Honor, my understanding
that this is going to be a new sort of [forensic nursing]
program that will be forthcoming.
Your Honor, I donât think looking at her CV is going to
drastically change my ability to counter anything
she would say by way of a witness who might give a
counterpoint, Your Honor, so no, Iâm not asking for a delay
for the Courtâs question. I donât think 24 hours is sufficient to
help me.
***
Your Honor, to have an expert in the form of a nurse come in
and start discussing very medical concepts particularly
inasmuch as they pertained to strangulation, the
follow-up tests, to a severed artery, Your Honor, why someone
would do that and why would they follow up with tests, that I
can see, Your Honor, goes to the crux of my argument which
is I believe sheâs looking at things that are specialized training
that I canât begin to understand.
Your Honor, the fact that I donât understand what a nurse says
on a normal day either, I donât think precludes me from
having her CV so that I can see specifically the training. Your
Honor, my understanding is the state may even have in this
case done some extra training in preparation for kind of a
Nos. 21AP-678 & 22AP-124 25
different kind of testimony than we might have had in the
past.
So, Your Honor, no, to the extent that the courts use the least
restrictive remedy to a 16(K) violation, Your Honor, I donât
believe a short delay with her CV would likely do that. I think
only looking at it in the context of what this might be in the
big picture and potentially having another witness that could
give some more or differing analysis is what we would be
looking for.
(Emphasis added.) (Tr. Vol. I at 14-17. See also Tr. Vol. II at 219; Tr. Vol. III at 429-30.)
{¶ 79} To address defense counselâs concerns about the inadequacy of a 24-hour
trial continuance, the trial court postured that defense counsel could ask for a 22-day
continuance as a remedy for the stateâs failure to timely produce Nurse Woodâs CV. (Tr.
Vol. I at 17.) But, Mr. Harrisâwho was incarcerated at the time of trialâtold his trial
counsel he did not wish to continue the scheduled trial. (Tr. Vol. I at 17.) The trial court
deferred ruling on this issue at that time. (Tr. Vol. I at 18.)
{¶ 80} The state provided defense counsel with Nurse Woodâs CV after the first day
of trial ended and, we note, before any witnesses were called. (Tr. Vol. I at 215; Tr. Vol. III
at 403.) The state called Nurse Wood as a witness on the third day of trial. (See Tr. Vol. III
at 416.) Before she testified, however, defense counsel again argued that because the state
failed to timely produce Nurse Woodâs CV, Crim.R. 16(K) precluded her from testifying.
(See Tr. Vol. III at 402-08.) Specifically, defense counsel explained that he anticipated
Nurse Wood would âtestify that she did a forensic examination that reveals specific things
with regard to strangulation,â and expressed concern about the state calling âa nurse who
has forensic training specific to looking for signs or symptoms of strangulationâ when he
was not timely provided with her CV detailing her certification in this area. (See Tr. Vol. III
at 404-05.) Mr. Harrisâs trial counsel emphasized his concern about the state âattempting
to use [Nurse Woodâs] testimony to make [the jury] look at this as potentially a life-
threatening situation,â which the defense pointed out was relevant to the âserious physical
harmâ element of both the felonious assault and kidnapping charges. (See Tr. Vol. III at
407-08.)
{¶ 81} Finding the plain language of Crim.R. 16(K) did not ârequire the express and
particularized transmission of a [CV],â the trial court ultimately denied Mr. Harrisâs motion
Nos. 21AP-678 & 22AP-124 26
to preclude Nurse Woodâs testimony at trial. (Nov. 2, 2021 Entry at 2. See also Tr. Vol. II
at 219; Tr. Vol. III at 410-11.) More precisely, the trial court issued an entry modifying the
disclosure period, pursuant to Crim.R. 16(K), and explaining its findings and reasoning in
support of that decision. (Nov. 2, 2021 Entry, citing State v. Seitz, 5th Dist. No. 14 CAA 10
00072, 2015-Ohio-3100.)
{¶ 82} We acknowledge the mandatory language of Crim.R. 16(K). However, we
need not reach the issue of whether a trial courtâs discretion remains when a party fails to
âdiscloseâ an expertâs âwritten report,â as contemplated by Crim.R. 16(K), because
there is no dispute in this case that the state timely disclosed Nurse Woodâs written report.
(Emphasis added.) Compare State v. Opp, 3d Dist. No. 13-13-33, 2014-Ohio-1138, ¶ 9-16, quoting State v. Sage,31 Ohio St.3d 173, 180
(1987) (summarizing decisions declining to strictly apply the last sentence of Crim.R. 16(K), and expressing its intention to âcontinue to apply the long-established precedent, which holds that questions regarding the admission or exclusion of evidence are within the trial courtâs discretion, * * * in connection with violations of Crim.R. 16(K).â). See also State v. Allenbaugh, 11th Dist. No. 2019-A- 0017,2020-Ohio-68, ¶ 33-34
.
{¶ 83} We refuse to give the mandatory exclusion language of Crim.R. 16(K) the
broad reading Mr. Harris proposes, as such construction would run afoul of the plain and
unambiguous language of the rule. In fact, Mr. Harrisâs contention that the trial court was
required to exclude Nurse Woodâs trial testimony is belied by the sentence which precedes
the language on which he relies. That sentence provides that an expertâs written report and
summary of qualifications âshall be subject to disclosure under this rule no later than
twenty-one days prior to trial, which period may be modified by the court for good
cause shown, which does not prejudice any other party.â (Emphasis added.)
Crim.R. 16(K). We read this sentence as expressly providing for a trial courtâs discretion in
addressing a partyâs failure to comply with the timing requirements of the rule.
{¶ 84} Thus, to prevail on his third assignment of error, Mr. Harris must show the
trial court abused its discretion in modifying the 21-day period applicable to the pre-trial
production of Nurse Woodâs CV. But, Mr. Harris does not contend on appeal that good
cause was not shown, that he was prejudiced in any meaningful way by the belated
disclosure of Nurse Woodâs CV, or that the exclusion of Nurse Woodâs testimony would
Nos. 21AP-678 & 22AP-124 27
have changed the result of his trial. And, on review of the record below, we do not find any
viable basis to make such contentions.
{¶ 85} The trial court found, on the facts of this case, good cause existed to modify
the disclosure deadline, and summarized those reasons. First, it noted defense counsel
knew, before trial, that Nurse Wood was a registered nurse. (Nov. 2, 2021 Entry at 1. See
Tr. Vol. III at 403.) The trial court also pointed out that Nurse Woodâs report was timely
produced and complied with Crim.R. 16(K)âs requirements. (See Nov. 2, 2021 Entry at 2.
See, e.g., Tr. Vol. III at 402-03.) And, the trial court emphasized that, despite knowing
Nurse Woodâs CV had not yet been produced, Mr. Harrisâs trial counsel did not raise this
issue until the day of trial, albeit before the jury was impaneled (Nov. 2, 2021 Entry at 2.
See, e.g., Tr. Vol. I at 10; Tr. Vol. III at 406-07.) The trial court further found that the stateâs
failure to timely produce Nurse Woodâs CV was not done in bad faith, but rather, borne out
of a âministerial oversight.â (Nov. 2, 2021 Entry at 2.)
{¶ 86} The trial court also concluded that Mr. Harris would not suffer prejudice from
its decision to modify the stateâs disclosure period. It noted that defense counsel received
Nurse Woodâs CV more than a day prior to her testimony, thus giving him adequate time to
incorporate any relevant details gleaned from the CV into his cross-examination
preparations. (See Nov. 2, 2021 Entry at 2-3.) And, the trial court pointed out that, if the
prejudice from the belated disclosure were so great, Mr. Harris likely would have availed
himself of the trial courtâs proposed remedy of a 22-day continuance, which would
guarantee the stateâs compliance with the rule. (See Nov. 2, 2021 Entry at 3.)
{¶ 87} On review, we find the trial courtâs analysis is supported by the record. Thus,
we cannot say the trial court abused its discretion in enlarging the stateâs expert disclosure
period, as provided for in Crim.R. 16(K) and denying Mr. Harrisâs motion to exclude Nurse
Woodâs testimony at trial. It is undisputed that Mr. Harrisâs trial counsel had Nurse Woodâs
expert report âmonthsââand, most certainly, more than 21 daysâbefore trial. (See Tr. Vol.
I at 10. See also Tr. Vol. III at 402-03.) It is also undisputed that Mr. Harrisâs trial counsel
did not notify the state about its failure to produce Nurse Woodâs CV until the morning of
trial. (See Tr. Vol. I at 10.) The trial court proposed a remedyâin the form of either a brief
(24 hours) or extended (22 days) continuance of trialâto address the stateâs noncompliance
with Crim.R. 16(K). (Tr. Vol. I at 14-18.) But, Mr. Harris rejected both. (Tr. Vol. I at 14-
Nos. 21AP-678 & 22AP-124 28
18.) And, the state provided defense counsel with Nurse Woodâs CV over 24 hours before
she testified at trial. (See Tr. Vol. I at 215-16; Tr. Vol. III at 403.)
{¶ 88} Significantly, we note that defense counselâs concerns about the stateâs
untimely production of Nurse Woodâs CV were expressed in connection with Mr. Harrisâs
felonious assault and kidnapping charges. (Tr. Vol. III at 404-08.) Defense counsel did not
contend, however, that the stateâs untimely production of Nurse Woodâs CV impacted Mr.
Harrisâs ability to present a defense as to the aggravated burglary offense. This point is
relevant to our analysis of whether Mr. Harris was prejudiced by the trial courtâs
enlargement of the stateâs disclosure period under Crim.R. 16(K), as the aggravated
burglary was the only offense for which Mr. Harris was convicted.
{¶ 89} Nurse Woodâs expert testimony and opinion about the cause or severity of
L.A.âs injuries had minimal relevance to the juryâs evaluation of whether the stateâs evidence
proved, beyond a reasonable doubt, that Mr. Harris trespassed in D.D.âs house by force,
with the purpose to commit an assault offense, and inflicted, attempted to inflict, or
threatened to inflict physical harm on L.A. See R.C. 2911.11(A)(1). The evidentiary support
for the essential elements of that offense was borne out, in large part, by the testimony of
D.D. and L.A. about the events that took place on June 24, 2020. This means that, even
assuming Nurse Woodâs testimony should have been excluded from trial, the trial courtâs
failure to do so still would not rise to the level of reversible error under the facts and
circumstances of this case. Mr. Harris does not argue on appeal, did not argue in the trial
court, and the record before us does not support a finding that, had Nurse Woodâs
testimony been excluded from trial, the jury would not have found Mr. Harris guilty of the
aggravated burglary offense.
{¶ 90} For the foregoing reasons, we overrule Mr. Harrisâs third cross-assignment
of error.
D. Fourth Cross-Assignment of Error
{¶ 91} In his fourth cross-assignment of error, Mr. Harris argues he received
ineffective assistance of trial counsel. Those arguments are not well-taken.
Nos. 21AP-678 & 22AP-124 29
1. Controlling Law and Standard of Review
{¶ 92} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) counselâs performance was deficient or objectively unreasonable, as
determined by â âprevailing professional norms;â â and (2) that the deficient performance of
counsel prejudiced the defendant. State v. Spaulding, 151 Ohio St.3d 378,2016-Ohio-8126, ¶ 77
, quoting Strickland v. Washington,466 U.S. 668, 688, 694
(1984).
{¶ 93} To show trial counselâs performance was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show counselâs actions were not trial strategies prompted by
reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie,81 Ohio St.3d 673, 675
(1998). Tactical or strategic decisions, even if unsuccessful, do not generally constitute ineffective assistance of counsel. State v. Frazier,61 Ohio St.3d 247, 255
(1991). Rather, the errors complained of must amount to a substantial violation of counselâs essential duties to his client. See State v. Bradley,42 Ohio St.3d 136, 141-42
(1989).
{¶ 94} Prejudice results when â âthere is a reasonable probability that, but for
counselâs unprofessional errors, the result of the proceeding would have been different.â â
Bradley at 142, quotingStrickland at 694
. â âA reasonable probability is a probability sufficient to undermine confidence in the outcome.â âId.,
quotingStrickland at 694
.
{¶ 95} When analyzing an ineffective assistance of counsel claim, an appellate court
âneed not determine whether counselâs performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.â Strickland at
697. See also State v. Wade, 10th Dist. No. 20AP-456,2021-Ohio-4090, ¶ 19
. âIf it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course should be followed.âStrickland at 697
.
2. Analysis
{¶ 96} Mr. Harris asserts his trial counsel was ineffective in two respects: (1) failing
to object to the introduction of prior bad acts testimony; and (2) deficiently cross-
examining several of the stateâs witnesses. (Brief of Cross-Appellant at 34-40.)
Nos. 21AP-678 & 22AP-124 30
Additionally, Mr. Harris asserts the cumulative effect of these alleged errors rendered his
trial counsel ineffective.
{¶ 97} As to the merits of each ineffective assistance allegation, the state argues Mr.
Harris has failed to rebut the presumption that his trial counsel provided him with adequate
representation. The state also contends that Mr. Harris has failed to demonstrate how he
was prejudiced by any of the alleged errors individually or cumulatively.
a. Failure to object to testimony and evidence about prior bad acts.
{¶ 98} Mr. Harris first alleges his attorney was ineffective for failing to object to the
introduction of irrelevant and inadmissible prior bad acts evidence presented to the jury
through L.A.âs testimony. During L.A.âs direct examination, the trial prosecutor asked L.A.
why she did not feel as though she could leave her home while Mr. Harris was there. (Tr.
Vol. II at 257.) In response, L.A. stated: âBecause previous times [Mr. Harris] said he was
going to kill me so I thought it was my time.â (Sic.) (Emphasis deleted.) (Brief of Cross-
Appellant at 34, citing Tr. Vol. II at 257.) It is this single piece of inferential evidenceâthat
is, the âprevious timesâ reference which could be construed as suggesting Mr. Harris had
assaulted L.A. beforeâto which Mr. Harris contends his trial counsel should have objected.
{¶ 99} In his brief, Mr. Harris does not argue this evidence was not relevant under
Evid.R. 401. (See Brief of Cross-Appellant at 34-37.) In any event, we conclude that it was.
Relevant evidence is defined as âevidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.â Evid.R. 401. âEvidence which is not relevant is not
admissible.â Evid.R. 402. From our review of the record, it is clear that part of the defenseâs
trial strategy was to undermine the veracity of L.A.âs allegations by emphasizing her delay
in reporting the incident. (See, e.g., Tr. Vol. II at 309-11.) The testimony at issue was
therefore relevant to explaining such delay.
{¶ 100} Mr. Harris instead argues his trial counselâs failure to object to this evidence
under Evid.R. 403 constituted deficient performance. Generally, he contends that this
brief, singular, and vague reference to âprevious timesâ may have tainted the juryâs
perception of him and, somehow, bolstered L.A.âs allegations. (Brief of Cross-Appellant at
37.)
Nos. 21AP-678 & 22AP-124 31
{¶ 101} âEvidence of any other crime, wrong, or act is not admissible to prove a
personâs character in order to show that on a particular occasion the person acted in
accordance with the character.â Evid.R. 404(B)(1). However, such evidence may be
relevant for other purposes, including to prove âmotive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.â Id.; accord R.C.
2945.59. The list of permitted purposes in Evid.R. 404(B) is not exhaustive. State v.
Morris, 132 Ohio St.3d 337,2012-Ohio-2407, ¶ 18
. Rather, âevidence of other crimes, wrongs or acts may be admissible for any purpose material to the issue of guilt or innocence, as long as it is not being introduced for the purpose of showing the accusedâs propensity to commit bad acts.â State v. Boles,187 Ohio App.3d 345
,2010-Ohio-278
, ¶ 49 (2d Dist.).
But, even if evidence is relevant, it is not admissible âif its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.â Evid.R. 403(A).
{¶ 102} Assuming arguendo that the challenged other-acts statement was
inadmissible, however, the âfailure to object to error, alone, is not enough to sustain a claim
of ineffective assistance of counsel.â State v. Holloway, 38 Ohio St.3d 239, 244(1988). See also State v. Pawlak, 8th Dist. No. 99555,2014-Ohio-2175, ¶ 81-83
; State v. Taylor, 10th Dist. No. 12AP-870,2013-Ohio-3699
, ¶ 33-35. As the Ohio Supreme Court has explained:
â[E]xperienced trial counsel learn that objections to each
potentially objectionable event could actually act to their
partyâs detriment. * * * In light of this, any single failure to
object usually cannot be said to have been error unless the
evidence sought is so prejudicial * * * that failure to object
essentially defaults the case to the state. Otherwise, defense
counsel must so consistently fail to use objections, despite
numerous and clear reasons for doing so, that counselâs
failure cannot reasonably have been said to have been part of
a trial strategy or tactical choice.â
State v. Johnson, 112 Ohio St.3d 210,2006-Ohio-6404
, ¶ 140, quoting Lundgren v. Mitchell,440 F.3d 754, 774
(6th Cir.2006).
{¶ 103} In this case, defense counselâs failure to object to the challenged testimony
can be reasonably viewed as trial strategy or tactical choice. There was only one vague
reference to âprevious timesâ over the course of a three-day trial, which was not invited by
the prosecutor and did not amount to anything more than a brief and ambiguous mention
Nos. 21AP-678 & 22AP-124 32
of the prior history. The reference was not detailed and, once it was made by L.A., the
prosecutor did not pursue any additional inquiry about the topic. An objection to this
imprecise and fleeting comment could have brought a heightened awareness to any
suggestion that Mr. Harris had previously threatened, assaulted, or kidnapped L.A.â
something trial counsel might have intended to avoid. Accordingly, we find trial counselâs
failure to object to L.A.âs reference to âprevious times,â even if erroneous, may have been a
reasonable tactical choice. Thus, we conclude counselâs failure to object to this other-acts
evidence did not constitute deficient performance.
{¶ 104} We further find that Mr. Harris has failed to demonstrate prejudice, or a
reasonable probability that, but for his trial counselâs failure to object to this brief and non-
descriptive reference to previous encounters between Mr. Harris and L.A., the result of the
proceeding would have been different. Even assuming the jury heard and understood L.A.âs
mention of âprevious timesâ as referring to prior crimes committed by Mr. Harris, the juryâs
verdictâwhich included acquittals on two counts, including the felonious assault offenseâ
belies his claim that the admission of this evidence generally tainted the juryâs view of him,
so as to satisfy Stricklandâs prejudice prong. See, e.g., State v. Gardner, 2d Dist. No. 21357,
2010-Ohio-6479, ¶ 33. And, as already described above, the state produced ample evidence
supporting the aggravated burglary offense for which Mr. Harris was convicted. In light of
the overwhelming evidence of Mr. Harrisâs guilt as to that offense, we do not believe trial
counselâs failure to object to the other-acts evidence impacted the outcome of Mr. Harrisâs
trial.
{¶ 105} Based on the foregoing, we find trial counselâs failure to object to L.A.âs
reference to âprevious timesâ as impermissible other-acts evidence did not constitute
ineffective assistance of counsel.3
3 Although he does not attribute error to trial counselâs failure to request or the trial courtâs failure to give a
limiting instruction concerning the other-acts evidence suggested by L.A.âs reference to âprevious times,â he
nonetheless contends that the absence of such instruction âfurther prejudice[ed] [Mr.] Harris.â (Brief of Cross-
Appellant at 37.) We note, however, that the Ohio Supreme Court has expressly cautioned trial courts,
however, about giving such limiting instruction sua sponte any time other-acts evidence is presented at trial.
âDepending on the nature of the other-acts evidence and the context in which it is used, defense counsel may
as a matter of strategy wish to avoid highlighting the evidence for the jury.â State v. Hartman, 161 Ohio St.3d
214,2020-Ohio-4440, ¶ 67
, citing State v. Schaim,65 Ohio St.3d 51, 61
(1992), fn. 9 (âthe decision not to
request a limiting instruction is sometimes a tactical one, and we do not wish to impose a duty on the trial
courts to read this instruction when it is not requestedâ). Thus, Mr. Harrisâs contention is not well-taken.
Nos. 21AP-678 & 22AP-124 33
b. Deficient performance during cross-examination of the stateâs
witnesses.
{¶ 106} Mr. Harris also contends his trial counselâs cross-examination of some
witnesses constituted ineffective assistance of counsel. Specifically, Mr. Harris complains
that his trial counselâs line of questioning of D.D., Detective Wright, and Nurse Wood was
deficient because his attorney asked each of them âone question too manyââor, more
broadly, bad questionsâwhich elicited responses unfavorable to Mr. Harris. (See Brief of
Cross-Appellant at 38-40.)
{¶ 107} Generally, â[t]he extent and scope of cross-examination clearly fall within the
ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of
counsel.â State v. Leonard, 104 Ohio St.3d 54,2004-Ohio-6235
, ¶ 146. Moreover, â âan appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial counselâs strategic decision to engage, or not engage, in a particular line of questioning on cross-examination.â â State v. Dorsey, 10th Dist. No. 04AP-737,2005-Ohio-2334, ¶ 22
, quoting In re Brooks, 10th Dist. No. 04AP-164,2004-Ohio-3887, ¶ 40
. See also State v. Allah, 4th Dist. No. 14CA12,2015-Ohio-5060, ¶ 23
.
{¶ 108} After our review, we do not find the record before us supports the argument
that trial counselâs cross-examination of these three witnesses constituted deficient
performance under Strickland. In Ohio, it is often difficult for attorneys in criminal trials
to anticipate how a witness called by the opposing party will respond to questions because,
unlike in civil cases, the Ohio Rules of Criminal Procedure do not provide for pre-trial
discovery depositions. The record demonstrates that defense counselâs strategy at trial was
to suggest that either L.A. was not injured at all or that her injuries were not serious. And,
the questions Mr. Harris now takes issue with on appeal were on par with that strategy.
Although trial counselâs questions did not result in the responses he hoped for and perhaps
could have been more craftily worded, we cannot say they fell outside the realm of
reasonable trial strategy.
{¶ 109} Moreover, Mr. Harris fails to demonstrate prejudice, or a reasonable
probability that, but for his trial counsel asking each of these three witnesses a single
question that elicited from each an answer that undermined Mr. Harrisâs claim that L.A.âs
injuries were not serious, the result of the proceeding would have been different. The
felonious assault and kidnapping offenses Mr. Harris was charged with prohibit a person
Nos. 21AP-678 & 22AP-124 34
from causing serious physical harm to another in conjunction with the commission of
the offense. R.C. 2903.11(A)(1); R.C. 2905.01(A)(3). See R.C. 2901.01(A)(5) (defining
âserious physical harm to personsâ). And, significantly, the jury acquitted Mr. Harris of
both the felonious assault and kidnapping counts. But, for Mr. Harris to be convicted of
the aggravated burglary offense of which the jury found him guilty, the state was only
required to show Mr. Harris inflicted, attempted, or threatened to inflict physical harm
on another during the course of trespassing in an occupied structure by force and with
purpose to commit a criminal offense while inside. R.C. 2911.11(A)(1). âPhysical harm to
personsâ is broadly defined by Ohio law to include âany injury, illness, or other
physiological impairment, regardless of its gravity or duration.â R.C. 2901.01(A)(3).
{¶ 110} To support the prejudice prong of Strickland, Mr. Harris contends his trial
counselâs questioning of the stateâs witnesses resulted in answers that undermined Mr.
Harrisâs contention that L.A.âs injuries were either nonexistent or not serious. But the jury
was not required to find Mr. Harris caused serious physical harmâor, for that matter, any
physical harmâto L.A. in order to convict him of the aggravated burglary offense. As
described above, the state produced ample evidence suggesting Mr. Harris attempted to
cause, threatened to cause, and/or actually caused physical harm to L.A. on June 24, 2020.
Accordingly, we do not find his trial counselâs cross-examination questioning of these three
witnesses impacted the outcome of trial.
{¶ 111} Based on the foregoing, we find Mr. Harris fails to demonstrate either the
deficient performance or prejudice Strickland requires to support this allegation of
ineffective assistance of counsel.
c. Cumulative Error.
{¶ 112} Finally, Mr. Harris argues his trial counsel was ineffective based on the
cumulative effect of his errors during the trial. âUnder this doctrine, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial
even though each of the numerous errors does not individually constitute cause for
reversal.â State v. Graham, 164 Ohio St.3d 187,2020-Ohio-6700, ¶ 169
. See also State v. C.D.S., 10th Dist. No. 20AP-355,2021-Ohio-4492, ¶ 112
. As applied to a claim for ineffective assistance of counsel, â[e]ach assertion of ineffective assistance of counsel going to cumulative error depends on the merits of each individual claim; when none of the Nos. 21AP-678 & 22AP-124 35 individual claims of ineffective assistance of counsel have merit, cumulative error cannot be established simply by joining those meritless claims together.âGraham at ¶ 170
.
{¶ 113} Because each of Mr. Harrisâs individual claims of deficient performance is
without merit, we find that he has failed to show cumulative error sufficient to reverse his
convictions. We therefore find that Mr. Harris is unable to demonstrate ineffective
assistance of counsel.
{¶ 114} Based on the foregoing, Mr. Harrisâs fourth cross-assignment of error is
overruled.
III. ANALYSIS OF THE STATEâS SOLE ASSIGNMENT OF ERROR
{¶ 115} The Reagan Tokes Law, effective March 22, 2019, amended 50 sections of the
Revised Code and adopted four new sections. R.C. 2901.011. In general, the law provides
that first-degree and second-degree felonies not already carrying a life sentence are subject
to an indefinite sentencing scheme. Specifically, it requires a sentencing court to impose a
stated minimum sentence as provided in R.C. 2929.14(A)(2)(a) and an accompanying
maximum term as provided in R.C. 2929.144 for non-life-sentence felony offenses of the
first or second degree committed on or after March 22, 2019. The aggravated burglary
offense for which Mr. Harris was convicted occurred in June 2020, is a first-degree felony,
and is not subject to the possibility of a life prison sentence.
{¶ 116} R.C. 2967.271 specifies how the minimum and maximum prison terms affect
the amount of time a defendant sentenced under the Reagan Tokes Law will be
incarcerated. Generally, there is a rebuttable presumption that a defendant will be released
from prison after serving the minimum term imposed by the sentencing court. See
R.C. 2967.271(B). But the Ohio Department of Rehabilitation and Correction (âODRCâ)
âmay rebut [that] presumptionâ if itâbeing the ODRCââdetermines, at a hearingâ that one
of the conditions specified in R.C. 2967.271(C) apply. In that event, the ODRC âmay
maintain the offenderâs incarcerationâ up to the maximum prison term set by the
sentencing court. R.C. 2967.271(D)(1).
{¶ 117} Concerns about the constitutionality of the new law arose in Ohioâs common
pleas courts shortly after its enactment. See, e.g., State v. OâNeal, 1st Dist. No. C-190736,
2022-Ohio-3017(reversing trial courtâs decision refusing to impose indefinite sentence based on its finding that the indefinite sentencing provisions of the Reagan Tokes Law Nos. 21AP-678 & 22AP-124 36 violated the constitutional safeguards of procedural due process and separation of powers); State v. Simmons, 8th Dist. No. 109476,2021-Ohio-939
(the same). And, we note that, at
the time Mr. Harris was sentenced, neither this court nor the Supreme Court had ruled
upon the constitutionality of the new law.
{¶ 118} While this appeal was pending, however, the Supreme Court issued a decision
finding the Reagan Tokes Law to be facially constitutional. Hacker, 2023-Ohio-2535 at
¶ 41. Pursuant to that decision, we must conclude the definite sentence imposed by the trial
court for the aggravated burglary offense is contrary to law.
{¶ 119} Accordingly, the stateâs sole assignment of error is sustained.
IV. CONCLUSION
{¶ 120} Having overruled each of Mr. Harrisâs four cross-assignments of error and
sustained the stateâs sole assignment of error, we vacate the nine-year prison sentence
imposed by the January 3, 2022 judgment of the Franklin County Court of Common Pleas
and remand this matter for a resentencing hearing on the aggravated burglary offense in
accordance with the Reagan Tokes Law.4
Sentence vacated; cause remanded.
MENTEL and BOGGS, JJ., concur.
4 At the December 3, 2021 sentencing, the trial court credited Mr. Harris with 487 days of pre-sentencing jail-
time credit. On remand, the trial court should, after imposing an indefinite sentence in accordance with this
decision and Ohioâs sentencing laws, calculate how many post-sentencing days Mr. Harris has been
incarcerated in connection with this case and credit those daysâalong with the 487 days of pre-sentencing
jail-time creditâas time-served towards the new prison sentence it imposes.