State v. Harrell , 2022 Ohio 3740 ( 2022 )

[Cite as State v. Harrell, 2022-Ohio-3740.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111293
v. :
DEVAL H. HARRELL, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 20, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-656650-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Morgan Austin, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert B. McCaleb, Assistant Public Defender, for
appellant.
CORNELIUS J. O’SULLIVAN, JR., J.:
Defendant-appellant Deval Harrell, Sr., challenges his convictions for
felonious assault, kidnapping, and failure to comply, which were rendered after a
jury trial. He also contends that the trial court erred in relying on an old
presentence-investigation report for the purpose of sentencing, rather than ordering
a new one. After a thorough review of the facts and pertinent law, we affirm.
Factual and Procedural History
In February 2021, appellant was indicted on the following counts:
Count 1, felonious assault; Count 2, kidnapping; Count 3, failure to comply; Count
4, resisting arrest; Count 5, tampering with evidence; Count 6, possessing criminal
tools; and Count 7, drug trafficking. The case proceeded to a jury trial at which the
following facts were adduced.
On January 29, 2021, various government agents from the Ohio
Investigative Unit, the Cleveland police, and the United States Bureau of Alcohol,
Tobacco, Firearms, and Explosives had been conducting a drug interdiction
operation in a particular area surrounding St. Clair Avenue in Cleveland. One of the
agents involved in the operation, Robert Boldin, testified that earlier that night he
noticed an individual, later identified as Teal Johnson, driving along St. Clair
Avenue, pulling onto various gas station lots but not stopping to get gas or anything
from the accompanying stores.1 Agent Boldin testified that he and other agents
1 Agent Boldin was an assistant agent in charge of the Cleveland District Office of the Ohio
Investigation Unit. The Ohio Investigation Unit is a state law enforcement agency that
conducts state-level investigations focused primarily on vice crimes involving narcotics,
gambling, prostitution, and liquor. Agent Boldin completed basic peace officer training
in 1993, and at the time of trial, had 28 years of law enforcement experience, which
included experience in local police departments and as a narcotics detector canine
handler. He has served on a multiple-county drug task force and has had advanced
training in narcotics investigations.
followed Johnson discreetly from station to station and eventually to a Shell station
on the corner of East 115th Street and St. Clair Avenue where she met appellant.
Johnson testified that she pulled up to a pump, and appellant pulled up
to the pump on the opposite of her and asked her if she “liked to party,” which she
took to mean that he was offering to sell her drugs. Johnson testified that she was a
recently relapsed drug addict and, based on her belief that appellant was offering to
sell her drugs, she got in his vehicle.
Agent Boldin saw Johnson get into the rear of appellant’s vehicle and
saw appellant turn all the way around in the driver’s seat and reach with his left hand
towards the back seat where Johnson was. Based on his previous observations of
Johnson, as well as what he observed inside appellant’s vehicle, Agent Boldin
determined that there was reasonable suspicion of a possible drug transaction and
announced his intention to approach appellant’s vehicle; the agent radioed for back-
up assistance.
Back-up law enforcement assistance arrived and maneuvered their
vehicles in a position so as to prevent the potential flight of appellant. Agent Boldin
parked his vehicle in front of appellant’s vehicle, and another agent parked to the
rear of appellant’s vehicle. Agent Boldin testified that, although the law enforcement
officials were in undercover vehicles, the vehicles were equipped with either sirens
or police lights or both, which were activated as the officials responded to the scene.
After the officials responded to the scene, appellant reversed his vehicle and hit the
agent’s vehicle parked behind him.
Agent Daniel Mone testified as to what transpired next.2 Upon seeing
appellant strike Agent Phillips’s vehicle, Agent Mone approached the driver’s
window of appellant’s vehicle with his service weapon drawn and ordered appellant
to put his vehicle in park and turn it off. Agent Mone also banged on the window of
appellant’s vehicle and told him to not put the vehicle in drive and to keep his hands
off the steering wheel. Agent Mone and appellant made eye contact. At that time,
the agent had one foot on the running board of appellant’s vehicle and the other foot
on the ground. According to Agent Mone, appellant sat in his vehicle for a moment
as if he were contemplating whether he was going to comply with the agent’s
commands. Ultimately, appellant did not follow any of Agent Mone’s commands
and, instead, put his vehicle in drive, turned the wheel, and accelerated.
Agent Mone testified that appellant turned his steering wheel so hard
that Agent Mone was thrown off appellant’s vehicle and pushed into another vehicle
on the scene. The agent explained that he was pinched in between the other vehicle
and appellant’s vehicle and thought he was going to get crushed between the two
vehicles. Agent Mone’s right buttock was on the other vehicle while the front of his
right thigh was on appellant’s vehicle. The agent testified that the impact hurt, but
admitted that it was “not extremely painful” and that he suffered only minor bumps
and bruises from being pushed up and pinned between the two cars. Appellant sped
2 Agent Mone was an enforcement agent with the Cleveland District of the Ohio
Investigation Unit. He completed basic police officer training, as well as three weeks
orientation and six months field training with the Investigation Unit. He had been
employed with the Unit for eight years, and at the time of the incident was a member of
the FBI gang task force.
away from the gas station. His vehicle “jumped” the gas station’s curb, and struck a
utility pole wire. Appellant then sped down the street. Video surveillance from the
gas station captured much of the above-described events and was played for the jury.
See state’s exhibit Nos. 2 and 3.
Johnson was still in the vehicle. She testified that, in the moments
leading up to appellant speeding away, she saw “a lot of cars come screeching in at
one time and [she] didn’t know what it was.” However, she “just happened to look
up and * * * saw a little—the red and blue * * * small light * * * flashing, and [she]
realized they were all police.” Johnson testified that upon realizing the cars were the
police, she said out loud “[w]ell, these are the police in front of us.” Appellant then
sped away. Johnson admitted that she voluntarily got into appellant’s vehicle, but
testified that she did not want to be in the car when the police arrived and that she
was unable to get out of the vehicle once appellant sped away because “we were just,
like, going too fast * * * I wouldn’t be able to just jump out of the car. I wouldn’t get
out while we’re speeding away. I mean, without probably killing myself.”
Shortly after speeding away from the gas station, appellant lost control
of his vehicle, drove into a vacant lot, and crashed into a fence. Appellant fled the
scene and was apprehended after a 20-30 minute search. Johnson was unable to
get out the vehicle and the police had to remove her through a window.
Appellant testified. He admitted that he has prior convictions for
receiving stolen property, conveyance of illegal substances in a detention center, and
drug trafficking. His last conviction was around 2011, and he testified that he has
not been involved with drugs since then.
In regard to this case, appellant testified that he was driving on St.
Clair Avenue, on his way to his brother’s house, when he noticed a “nice-looking”
lady (Johnson) at the Shell gas station and decided to stop to talk to her. Appellant
pulled up to the opposite side of the pump where Johnson was and asked her if she
liked to party; Johnson responded “yes.”
According to appellant, Johnson got out of her vehicle and went into
the gas station store, he presumed to pay for her gas. He testified that while she was
in the store he was finding music to play and did not look out of his window at all.
Johnson came back to his vehicle, and he told her to get in the back because the front
passenger seat was wet. Upon Johnson getting in the back, appellant immediately
turned around to talk to her. The next thing appellant saw were “bright lights.”
Appellant denied that he saw red or blue flashing lights or the police. Rather, he
thought he was being robbed and he fled because of his “street instincts.”
Appellant testified that he did not see any of the law enforcement
officials on the scene and did not hear any of their commands because he was turned
around and the music was turned up loud. He said he asked Johnson if she knew
what was going on. He could not hear her answer, but read her lips that she did not.
He testified that if he had known the police were there he would have stopped
because he was not doing anything wrong.
On cross-examination, the assistant prosecuting attorney played the
surveillance video from the gas station for appellant. Appellant admitted seeing the
police on the video. He described one officer as “pretty much kissing the window”
of his (appellant’s) vehicle and another officer as “pretty much like on the window.”
Appellant reiterated that at the time of the within incident he was not trafficking in
drugs, having stopped that activity years prior.
On this evidence, the jury returned verdicts of guilty on Count 1,
felonious assault, Count 2, kidnapping, and Count 3, failure to comply. The jury
returned a verdict of not guilty on Count 4, resisting arrest.3 The trial court
sentenced appellant to an eight-year prison term. This appeal ensues, with
appellant raising the following three assignments of error for our review:
I. The convictions on Counts 1 and 2 were obtained on insufficient evidence.4
II. The trial court erred when it permitted the government to impeach Mr.
Harrell’s credibility under Evid.R. 609 without first balancing the
probative value against the risk of prejudice.
III. The trial court erred when it failed to order a new pretrial investigation
report and, rather than proceeding without one, used an old one. This
error denied Mr. Harrell his right to due process of law.
Law and Analysis
In his first assignment of error, appellant contends that his felonious
assault and kidnapping convictions are not supported by sufficient evidence.
3
The state dismissed Counts 5, 6, and 7, tampering with evidence, possessing
criminal tools, and drug trafficking, respectively.
4 Appellant does not challenge his failure to comply conviction (Count 3) on the
ground of sufficiency of the evidence; his challenge to that count is encompassed under
his second assignment of error under which he seeks a new trial.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541(1997). “On review for sufficiency, courts are to assess not whether the State’s
evidence is to be believed, but whether, if believed, the evidence against a defendant
would support a conviction.” State v. Dyer, 8th Dist. Cuyahoga No. 88202, 2007-
Ohio-1704, ¶ 24, citing Thompkins at 390.
Felonious Assault
Appellant was charged with felonious assault under R.C.
2903.11(A)(2), which provides that “[n]o person shall knowingly * * * [c]ause or
attempt to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordnance.” According to appellant, the evidence was insufficient to show
that he knowingly used his vehicle as a deadly weapon and that he knowingly caused
or attempted to cause harm to Agent Mone.
“Knowingly,” for purposes of R.C. 2903.11, is defined in R.C.
2901.22(B) as follows:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence and
fails to make inquiry or acts with a conscious purpose to avoid learning
the fact.
A “deadly weapon” is “any instrument, device, or thing capable of
inflicting death, and designed or specifically adapted for use as a weapon, or
possessed, carried, or used as a weapon.” R.C. 2901.22(A). It is well-established
that a vehicle, “when used in a manner likely to produce death or great bodily harm,
can be classified as a ‘deadly weapon’ under R.C. 2923.11.” State v. Sternbach, 8th
Dist. Cuyahoga No. 100653, 2014-Ohio-4203, ¶ 24, citing State v. Tate, 8th Dist.
Cuyahoga No. 87008, 2006-Ohio-3722, ¶ 23, citing State v. Troyer, 8th Dist.
Cuyahoga No. 61983, 1993 Ohio App. LEXIS 1791 (Apr. 1, 1993); see also State v.
Dupuis, 6th Dist. Lucas No. L-12-1035, 2013-Ohio-2128, ¶ 61, citing State v.
Griffith, 8th Dist. Cuyahoga No. 97366, 2013-Ohio-256, ¶ 13 (“In Ohio, a vehicle,
such as a car or minivan, is recognized as a ‘deadly weapon’ as set forth in R.C.
2901.22.”).
Appellant contends that the “evidence in this case was insufficient to
show that [he] ‘used’ his automobile knowingly as a ‘deadly weapon’ under the
circumstances.” He cites a number of cases in which he contends that, unlike this
case, there was “clear evidence of [a] specific intent to use the car as a deadly
weapon.” Appellant compares those cases to this case, where he contends he “lightly
bumped an unoccupied police vehicle, causing only,” as Agent Boldin described it,
“nondisabling, nonmechanical cosmetic damage.” Appellant further contends that
in regard to Agent Mone, the agent testified that appellant “nearly” hit him, causing
him “to bump into a car behind him, but not causing [him] any physical harm.”
Thus, according to appellant the record only demonstrates that he was attempting
to flee; it does not demonstrate felonious assault. We disagree.
In regard to appellant’s claim of lack of injury to anyone, the record
belies his contention. Agent Mone testified that he was “pinched” between
appellant’s vehicle and another vehicle. The agent’s leg was pinned between the two
vehicles while his right buttock was against one vehicle and the front of his right
thigh was pressed against the other vehicle when he was thrown off the running
board of appellant’s vehicle. Although Agent Mone was not seriously injured, he did
testify that the impact hurt and that he suffered minor bumps and bruises as a result.
“Physical harm” means any injury regardless of its gravity or duration. R.C.
2901.01(A)(3). The evidence in this case is sufficient to support a finding of physical
harm.
Moreover, the statute prohibits causing or attempting to cause
physical harm. The evidence was sufficient to demonstrate that appellant attempted
to cause physical harm. (See State v. Brown, 8th Dist. Cuyahoga No. 90398, 2008-
Ohio-23668, ¶ 14 (sufficient evidence supported felonious assault conviction under
R.C. 2903.11(A)(2) where police pulled in driveway behind defendant’s vehicle,
defendant put his car in reverse, and police had to put their cruiser in reverse to
avoid being hit).)
We are also not persuaded by appellant’s contention that, at most, the
evidence only supported a fleeing charge. This court has held that “‘[f]elonious
assault has been established where the accused strikes a police car during a high
speed chase, yet claims he was merely attempting to flee * * * and has also been
established where the accused accelerates toward a police officer, but claims to have
done so without the requisite mental state.’” State v. Prince, 8th Dist. Cuyahoga No.
61342, 1992 Ohio App. LEXIS 5844, *4-*5 (Nov. 19, 1992), quoting State v. Bernard,
8th Dist. Cuyahoga No. 59452, 1991 Ohio App. LEXIS 5875, *6 (Dec. 5, 1991), citing
State v. Townsend, 8th Dist. Cuyahoga No. 56571, 1990 Ohio App. LEXIS 600 (Feb.
22, 1990), and State v. Buford, 8th Dist. Cuyahoga No. 57213, 1990 Ohio App.
LEXIS 2838 (July 12, 1990).
Thus, the state presented sufficient evidence, if believed, to support
the felonious assault conviction.
Kidnapping
Appellant was convicted of kidnapping under R.C. 2905.01(B)(1),
which provides that “[n]o person, by force, threat, or deception * * * shall knowingly
* * *, under circumstances that create a substantial risk of serious physical harm to
the victim, * * * [r]emove another from the place where the other person is found[.]”
Relying on Johnson’s testimony that she voluntarily got into appellant’s vehicle,
appellant contends that the evidence was insufficient to demonstrate that he used
force, threat, or deception to remove Johnson from the place where she was found.
We disagree.
R.C. 2901.01(A)(1) defines force as “any violence, compulsion, or
constraint physically exerted by any means upon or against a person or thing.” This
court has previously explained that
Ohio law is clear that “[a]n offense under R.C. 2905.01 does not depend
on the manner in which an individual is restrained. * * * Rather, it
depends on whether the restraint ‘is such as to place the victim in the
offender’s power and beyond immediate help, even though
temporarily.’ * * * The restraint ‘need not be actual confinement, but
may be merely compelling the victim to stay where he [or she] is.’”
State v. Mosley, 178 Ohio App.3d 631, 2008-Ohio-5483, 899 N.E.2d
1021[(8th Dist.)], citing State v. Wilson, 10th Dist. Franklin No. 99AP-
1259, 2000 Ohio App. LEXIS 5057 (Nov. 2, 2000).
State v. Wright, 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 24.
In State v. Ryan, 8th Dist. Cuyahoga No. 108143, 2019-Ohio-5339,
this court upheld a kidnapping conviction in an instance where the victim
voluntarily got into the defendant’s vehicle. In Ryan, the victim voluntarily got into
the defendant’s, her then- boyfriend’s, vehicle. The defendant was upset with the
victim and began assaulting her. The victim testified as to being under the
defendant’s power and beyond immediate help. She explained that he was driving
in an “‘insane’ manner.” Id. at ¶ 5. He “was trying to beat me up with the car, not
just his hands. * * * [he was] slamming on the brakes, trying to get around other
cars, trying to go fast.” Id. The victim testified that she repeatedly tried to get out
of the car, but the defendant would speed up, making it “impossible.” Id.
The defendant in Ryan was convicted of felonious assault and
kidnapping. On appeal, he admitted that he assaulted the victim, but challenged his
kidnapping conviction. This court upheld the conviction, finding “[a]lthough [the
victim] initially voluntarily got into the car with [the defendant], she testified that
she attempted to get out after he started assaulting her, but he would speed up,
making it impossible for her to do so. The record shows that Ryan restrained her of
her liberty for the purpose of terrorizing her and inflicting serious physical harm on
her.” Id. at ¶ 27.5
Further, appellee cites State v. Haynes, 6th Dist. Wood No. WD-19-
035, 2020-Ohio-6977, for the proposition that the physical act of driving a person
away from the place where they were found can constitute force. We agree with the
Sixth District’s reasoning.
In Haynes, the defendant picked up two of his grandsons from a
friend’s house and directed his wife to pick up his third grandson from school. All
three children voluntarily entered the vehicles and were driven away from the place
where they were found. Haynes did not have legal custody of the children and was
aware that the children’s father was on his way to get the children from the
respective places where they were. The defendant was convicted of abduction. On
appeal, he contended that state failed to present sufficient evidence of force to
support the abduction convictions.
The appellate court disagreed with the defendant. It noted that R.C.
2901.01(A)(1) defines force as “any violence, compulsion, or constraint physically
5 The defendant in Ryan was convicted of kidnapping under R.C. 2905.01(A)(3)
(“No person, by force, threat, or deception * * * shall remove another from the place where
the other person is found or restrain the liberty of the other person * * * [t]o terrorize, or
to inflict serious physical harm on the victim or another[.]”).
exerted by any means upon or against a person or thing” and analogized the force
used to move the children in the cars to that of burglary cases where trespass-by-
force is an element that is often met by showing a compulsion against a thing (i.e., a
door) rather than a person. (Emphasis added.)
In this case, Johnson, like the victims in Haynes, voluntarily got into
appellant’s vehicle. However, she testified that she did not want to be in the car
when the police arrived. Appellant insinuates that her testimony merely meant that
she did not want to be in trouble because her intention in getting into appellant’s
vehicle was to obtain drugs. Johnson elaborated, however, that she was unable to
get out of the vehicle once appellant sped away because “we were just, like, going too
fast * * * I wouldn’t be able to just jump out of the car. I wouldn’t get out while we’re
speeding away. I mean, without probably killing myself.” Further, both Johnson
and appellant testified that Johnson’s vehicle was at a pump when she got in
appellant’s vehicle. That testimony created a reasonable inference that Johnson
only intended to get in appellant’s vehicle to obtain drugs, not to be moved from the
place where she was found. The testimony demonstrated that Johnson was under
appellant’s power and beyond immediate help; she was compelled to stay in the
vehicle. The state presented sufficient evidence, if believed, to support the
kidnapping conviction.
The first assignment of error is overruled.
In his second assignment of error, appellant contends that the trial
court erred by allowing the state to impeach him without first balancing the
probative value of the testimony against the risk of prejudice.
Evid.R. 609(A)(2) permits the admission of prior convictions — with
some limitations not at issue here — provided that the probative value outweighs the
danger of unfair prejudice, confusion of the issues, or misleading the jury, and the
evidence is not excluded by the court in its discretion under Evid.R. 403(B). State
v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059d, 796 N.E.2d 506, ¶ 27.
Further, Evid.R. 403(A), provides that “[a]lthough relevant, evidence
is not admissible if its probative value is substantially outweighed by the danger of
unfair prejudice, of confusion of the issues, or of misleading the jury.” The exclusion
of relevant evidence under Evid.R. 403(A) rests within the discretion of the trial
court. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 107,
citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the
syllabus.
On direct examination, appellant testified that he had been convicted
of receiving stolen property, conveyance of illegal substance in a detention center,
and drug trafficking. He also testified that he knew “right from wrong.” On redirect
examination, appellant testified that he cooperates with law enforcement and
admitted to his involvement in criminal activity. Regarding this case, appellant
testified that had he known the police were attempting to stop him he would have
pulled over because he was “not doing anything wrong.” The following questions
and answers ensued:
Q. Okay. And in the past when you have done things wrong * * * you’ve
been charged with crimes, right?
A. Yeah.
Q. Have you ever admitted to that?
A. Yes. I pulled over.
Q. Okay. Well, you’ve been charged with crimes in the past—
A. Yes.
Q. –that we talked about, right?
A. Yes.
Q. And did you admit your involvement in those crimes?
A. Yes.
Q. And why did you admit your involvement in those crimes?
A. Because I knew I did wrong.
Q. And conversely, do you believe you did anything wrong here?
A. No.
Tr. 636.
On recross-examination, the assistant prosecuting attorney sought to
question appellant about specific instances when appellant’s contentions about
cooperativeness and doing the right thing were not authenticated by his actions.
Defense counsel objected and the trial court and counsel for the parties engaged in
a lengthy discussion about the state’s desired line of questioning. At the conclusion
of the discussion, the trial court ruled as follows:
All right. The Court’s going to overrule the defense’s objection and
allow any inquiry, not to the specifics, but in the past when [appellant
has] been stopped by the police * * * [has he] run and not complied and
* * * had to be caught. And had to be chased and caught. * * * And
then we’ll see what his answer is. * * * [I]f he answers yes, that’s the
end of it. Okay?
***
If he answers no and [the state] wants to follow up on cross, you do so
only after permission of the Court. We’ll decide if you meet the answer
or if you’re allowed to continue.
Tr. 658.
The trial court also allowed the state to question appellant as to
whether he had ever been dishonest with law enforcement about a crime, and
admonished the state that “[i]f the answer is yes * * * that’s the end of it. Then you
move on. We’re not going to retry those cases.” Id. at 659.
The following questioning ensued:
Q. Mr. Harrell, you testified that in the past if you knew police were
stopping you, you would comply, isn’t that true?
A. Yes.
Q. Isn’t it true in the past that you haven’t always complied with police
when they’ve attempted to stop you?
A. Not to my understanding.
Id. at 661.
The state then sought, and the trial court granted, permission for
further questioning about a prior incident in which appellant fled from the police.
Appellant testified as to the circumstances regarding that incident, and as the state
attempted to further question him, the trial court ended the line of inquiry stating,
“Counsel, that’s enough. Let’s go on to another subject. Let’s stick with this trial.”
In regard to appellant’s truthfulness with the police, appellant’s
testimony appears to be that on a prior occasion when he was being arrested, he was
searched before being placed in a police cruiser. As he was being booked into jail
“the detention office checked [his] fifth pocket and that’s when he seen [he] had
some marijuana in [his] fifth pocket.” Appellant admitted that the police at the jail
asked him if he had contraband on his person and he figured that they had already
retrieved the marijuana, so seemingly he told them no. The trial court ended the
state’s attempt at further questioning, stating that it did not “want to try that case.”
On this record, appellant opened the door to the state’s line of
questioning and it was permissible under the rules of evidence. Further, the trial
court properly limited the questioning so that appellant would not be unfairly
prejudiced.
The second assignment of error is overruled.
In his third assignment of error, appellant contends that the trial court
erred by failing to order a new presentence-investigation report. We disagree.
After the jury’s verdict, and prior to sentencing, the defense requested
a presentence-investigation report, so that counsel would “be able to have whatever
tools [counsel] needed” at sentencing. The court responded,
I agree, you should have the tools, but the presentence report, all it’s
going to do is rehash [appellant’s] prior history which we have from all
these other presentence reports. We have his 50 thereabouts arrest
records, cycles. We have the social history.
Tr. 816-817.
The trial court denied the defense’s request and gave the defense
several days to prepare for sentencing. The trial court told the defense that if it
needed to delve into anything further on behalf of appellant it should “file a motion
and I’ll entertain it. You’ll have to articulate why.” No such motion was filed and
the trial court relied on several past presentence-investigation reports completed on
appellant, the most recent of which was six years old.
Under R.C. 2947.06(A)(1), “[t]he court shall determine whether
sentence should immediately be imposed. The court on its own motion may direct
the department of probation of the county in which the defendant resides, or its own
regular probation officer, to make any inquiries and presentence investigation
reports that the court requires concerning the defendant.”
Under Crim.R. 32.2, “[i]n felony cases the court shall, and in
misdemeanor cases the court may, order a presentence investigation and report
before imposing community control sanctions or granting probation.”
In State v. Exline, 8th Dist. Cuyahoga No. 87945, 2007-Ohio-272, this
court stated, “Crim.R. 32.2, governing presentence investigations, mandates that
such reports are required only in instances when the court imposes community
control sanctions or probation. Thus, because appellant was sentenced to a prison
term, there was no requirement that the court order a presentence investigation
report.” Id. at ¶ 26.
Here, as in Exline, the court did not impose community-control
sanctions; therefore, it was not required to order a presentence investigation.
Further, it is clear that the trial court did not impose a sentence without any prior
background information. The presentence-investigation reports, by the defense’s
own admission, included information of appellant’s prior criminal record, social
history, family history, mental-health history, and drug history. Appellant’s counsel
stated that she was able to review the reports. Counsel also provided mitigation as
to what appellant had done in the six years since the last report was completed. On
this record, the trial court did not abuse its discretion in denying appellant’s request
for a new presentence report.
The third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
CORNELIUS J. O’SULLIVAN, JR., JUDGE
SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE CONCURRING
OPINION);
EMANUELLA D. GROVES, J., CONCURS WITH MAJORITY AND WITH THE
SEPARATE CONCURRING OPINION
SEAN C. GALLAGHER, A.J., CONCURRING:
I concur fully with the decision of the majority, but write separately to
clarify Harrell’s impeachment discussion, which has potential to create confusion
based on the interplay between several evidentiary rules and the potential for this
court to adopt analysis blurring the distinction between those separate evidentiary
rules.
Harrell primarily claims the trial court failed to consider the
foundational requirements under Evid.R. 609(A) before admitting Harrell’s prior
convictions into the record. Harrell stole the state’s thunder at trial, however, and
disclosed the fact of his prior convictions in accordance with Evid.R. 609(A) in his
direct examination. The trial court was not obligated to consider the foundation for
admitting the prior convictions under Evid.R. 609(A) because any foundational
error would have been invited by Harrell. His appellate reliance on the balancing
test under Evid.R. 609(A)(2) or (3) as a basis to seek reversal of the convictions is,
therefore, misplaced. Any error in that respect was caused by Harrell, not the state
or the trial court.
Although the following is not dispositive, there are important
distinctions between the relevant evidentiary rules that should be considered by the
parties in building records and presenting appellate arguments. Evid.R. 609 is not
relevant to how the disputed testimony was admitted at trial. On redirect-
examination, Harrell testified that if he had known that police officers were
initiating the stop at the gas station on the night of his arrest, he would have
submitted to their authority as he has demonstrated through his past encounters
with police officers — conveying to the jury that Harrell respected or was willing to
submit to the authority of law enforcement officers.
In response, the state sought to question Harrell about two discrete
instances of Harrell’s past conduct: his lying to arresting officers in an effort to
conceal drugs hidden on his body during prior arrest and Harrell’s conduct in fleeing
officers attempting to detain him for possessing stolen property — both of which are
evidence of Harrell’s character for truthfulness based on his trial testimony and were
beyond the simple fact of the prior convictions themselves. So, although the state’s
impeachment inquiry touched upon the fact of the prior convictions, only questions
related to the facts underlying those convictions, and not the extrinsic evidence of
those facts, were admitted at trial.
Even though neither the parties nor the trial court expressly stated it,
the state’s line of impeachment testimony in this case is governed by Evid.R. 608(B):
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness, other
than conviction of crime as provided in Evid.R. 609, may not be proved
by extrinsic evidence. They may, however, in the discretion of the
court, if clearly probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) concerning the witness’s
character for truthfulness or untruthfulness * * *.
The trial court, while not expressly referencing Evid.R. 608(B),
nevertheless determined that the state’s questioning was probative of Harrell’s
truthfulness on the witness stand but precluded the state from presenting extrinsic
evidence to support the impeachment inquiry. Accordingly, the trial court
permitted the state to question Harrell on cross-examination about those two
specific instances of Harrell’s conduct that contradicted his self-serving, direct
testimony. See, e.g., State v. Patton, 6th Dist. Lucas No. L-12-1356, 2015-Ohio-
1866, ¶ 106 (questioning witness about wearing gang memorabilia at school was
permitted on cross-examination to impeach the witness’s claim that she lacked any
knowledge of gangs). The admission of the disputed evidence in this appeal fell
under Evid.R. 608(B), a rule that was not discussed by Harrell in this appeal.
In addition to the misplaced focus on Evid.R. 609(A), Harrell also
asks for a declaration that the admission of the state’s impeachment line of inquiry
during the cross-examination was in error because that permitted the jury to
conclude that Harrell’s “conduct in this case was in conformity with his alleged
conduct in the prior cases.” There are inherent problems with this type of argument.
There are exceptions to Evid.R. 404(A), which sets forth the
preclusion against using character evidence to demonstrate actions in conformity
with prior conduct, exceptions not acknowledged by Harrell. Importantly, there is
no dispute that the state did not seek to introduce “other acts” evidence under
Evid.R. 404(B) to prove something other than character. Accordingly, this
discussion is solely guided by Evid.R. 404(A) and the rules on impeaching a
testifying witness.
Under Evid.R. 404(A), “evidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion” except for evidence of a pertinent character trait or the
character of the accused offered by the prosecution as rebuttal to the accused’s
introduction of evidence under subdivision (A)(1) of the rule or the prior felony
convictions of a witness introduced through Evid.R. 609(A) under subdivision
(A)(3) of the rule. See, e.g., State v. Morgan, 1st Dist. Hamilton No. C-160495, 2017-
Ohio-7489, ¶ 15 (“[T]hrough [the defendant’s] testimony that she wanted to find a
nonviolent resolution to the conflict and that she was a weak person who projected
a tough persona, she conveyed to the jury that she was, in fact, a peaceful person
who preferred to resolve conflicts in a peaceful manner,” and accordingly, the state
was permitted to rebut that implication through evidence that the defendant
previously resolved conflicts with violence under Evid.R. 404(A)(1).). Thus, for the
purposes of this appeal, any evidence introduced under Evid.R. 404(A)(1) is an
express exception to the general rule precluding the admission of the evidence for
the purpose of proving action in conformity with prior conduct.
Harrell’s entire claim, relying on the conformity language from
Evid.R. 404(A) under his analysis challenging the state’s impeachment during
cross-examination, is misplaced. Evid.R. 404(A)(1) provides an express exception
to the preclusion against proving action in conformity with prior conduct. Smith v.
Asbell, 4th Dist. Scioto No. 03CA2897, 2005-Ohio-2310, ¶ 31 (Evid.R. 404(A)(3)
“specifically states that evidence admissible under Evid.R. 609 is an exception to its
prohibition.”); State v. Martin, 12th Dist. Warren Nos. CA2002-10-111, CA2002-10-
115, and CA2002-10-116, 2003-Ohio-6551, ¶ 20 (“Use of character evidence for
impeachment under Evid.R. 609 ‘is a true exception to the policy against admitting
evidence of a character trait solely to show action in conformity with that trait.’”),
quoting State v. Mayes, 12th Dist. Madison No. CA99-01-002, 1999 Ohio App.
LEXIS 6405 (Dec. 30, 1999), and McCormick, Evidence, Section 194, 685 (5th
Ed.1999). Even if I were inclined to consider Harrell’s arguments on the merits,
which solely focus on Evid.R. 609, his argument fails to account for the exceptions
to Evid.R. 404(A) and it would be rejected of its own accord.
With these clarifications in mind, I otherwise fully concur with the
majority’s decision.