State v. Morris , 2024 Ohio 2960 ( 2024 )

[Cite as State v. Morris, 2024-Ohio-2960.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-23-24
PLAINTIFF-APPELLEE,
v.
DEMARCO B. MORRIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2021 0317
Judgment Affirmed
Date of Decision: August 5, 2024
APPEARANCES:
Chima R. Ekeh for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-23-24
ZMUDA, J.
{¶1} Defendant-appellant, Demarco Morris (“Morris”), brings this appeal
from the April 18, 2023, judgment of the Allen County Common Pleas Court
sentencing him to prison after a jury found him guilty of one count of murder, two
counts of felonious assault, and one count of discharge of a firearm on or near
prohibited premises. On appeal, Morris argues that his convictions were against the
manifest weight of the evidence, that the trial court erred by permitting extrinsic
evidence of a witness’s prior inconsistent statement without a limiting instruction,
and that the Reagan Tokes Law is unconstitutional. For the reasons that follow, we
affirm the judgment of the trial court.
Background
{¶2} On September 5, 2021, Morris fired three shots at a truck being driven
by Davion Latson (“Davion”). One of the bullets struck Davion in the back and
killed him. As a result of his actions, Morris was indicted for murder in violation of
R.C. 2903.02(A), an unclassified felony, murder in violation of R.C. 2903.02(B),
an unclassified felony, two counts of felonious assault in violation of R.C.
2903.11(A)(2), both second degree felonies, and discharge of a firearm on or near
prohibited premises in violation of R.C. 2923.162(A)(3), a first degree felony. All
charges contained three-year firearm specifications pursuant to R.C. 2941.145(A).
{¶3} Morris pled not guilty to the charges and filed a notice of self-defense.
He proceeded to a jury trial, which was held March 20-24, 2023.
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Evidence Presented
{¶4} The issues raised in the first and second assignments of error require a
detailed analysis of the evidence presented at trial.
{¶5} On Sunday September 5, 2021, Michael Latson (“Latson”) left his
residence with his friend Lemonda Pryor (“Lemonda”). Throughout the afternoon
and evening, Latson, Lemonda, and others consumed alcoholic beverages at various
residences in Lima. By all accounts, Latson was irritating some of the people he was
around by talking “down” to them or making threats. (Tr. at 752, 436, 414).
{¶6} Later in the evening, Latson, Lemonda, Morris, and a man named Larry
went to the liquor store to get more alcohol. While at the store, Latson got into a
verbal argument with Larry. Despite the argument, Latson returned with the others
to Larry’s residence at 168 South Perry Street in Lima.
{¶7} At Larry’s residence, numerous people were hanging out in the front
yard, including Latson, Lemonda, Larry, Larry’s live-in girlfriend Melody, Morris
and three of Morris’s children. While at the house, Latson again got into an
argument with Larry. This time, Morris, who was nearby and overheard Latson,
punched Latson in the face. Latson went to the ground and was dazed. Lemonda
eventually helped him up.
{¶8} Multiple officers from the Lima Police Department came to the
residence and inquired about a fight, but the officers were assured everything was
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fine, so they left. After the police were gone, Latson walked away from the residence
because, inter alia, he did not have another way to get home.
{¶9} Latson’s girlfriend called him while he was lost and walking around
Lima. She described him as confused and disoriented. Latson did not know where
he was, so his girlfriend told him to go to the nearest house with a porch light on
and ask the location. Latson did so, and told his girlfriend where he was located.
Because Latson’s girlfriend did not have a vehicle, she called her son, Davion, to
pick-up Latson.
{¶10} Davion arrived promptly in his truck and Latson got into the vehicle.
Davion asked Latson who had hurt him and Latson said that he did not know, but
he was with Lemonda. Latson’s girlfriend remained on the phone and could hear
the conversation. Davion drove Latson toward the hospital, which took him past
Larry’s residence. People were still outside, and Latson indicated that the residence
was where he had been punched. Davion did a U-turn and returned to the residence,
stopping in the road. He began to yell out the window to inquire who had hurt his
father, but as he was yelling, Morris fired three shots at the truck. As the bullets
were being fired, Davion started to pull away. However, one of the bullets went
through the truck and struck Davion in the back. Latson’s girlfriend was still on the
phone and overheard what transpired.
{¶11} Davion told his father that he thought he had been “hit.” (Tr. at 237).
Davion slumped over the steering wheel and his foot pressed on the gas. Latson
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tried to stop the truck but was unable to do so before the truck crashed and flipped
upside down. By the time law enforcement officers arrived at the scene of the crash,
Davion was deceased and Latson suffered numerous injuries.
{¶12} Law enforcement officers responded to the area of the shooting and
secured the residence at 168 South Perry. Morris was not at the residence when
police arrived; however, he was located several hours after the shooting, coming out
of a shed that was behind a residence next door to where the shooting occurred.
{¶13} Several people who were present during the shooting spoke with the
police and ultimately testified at trial. Larry’s girlfriend Melody, who also lived at
168 South Perry in Lima, testified that she had asked Latson to leave the residence
earlier in the night because she heard Latson threaten Larry.
{¶14} As to the shooting, Melody testified that she saw the truck Davion and
Latson were in go past her residence, then make a U-turn. Melody did not know
who was driving the truck when the truck stopped in front of the house and the
driver started shouting. Melody testified that Morris started shooting and the truck
drove away. Melody testified she did not see the driver of the truck get out of the
vehicle and that she did not see him with a gun. Melody testified that she saw Morris
hand the gun he used to shoot at the truck to a younger male. The younger male took
the gun and hid it under a mattress in the house, which was later located when police
searched the residence.
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{¶15} Zander H. was present at the time of the shooting and his testimony
was consistent with Melody’s. He testified he saw the truck pass the residence, then
turn back. He observed two people in the truck cab. Zander testified that he did not
see the driver have a gun but he did hear the driver yelling through the window.
Zander testified that the driver started pulling away as shots were fired.
{¶16} Lemonda testified at trial as well. He detailed the day he had spent
with Latson and the events that preceded the shooting. Lemonda testified that Latson
was irritating people throughout the evening and that he helped Latson off the
ground after Morris punched him. Lemonda testified that when Latson left,
Lemonda told Morris and others that the matter was not over, that Latson would be
back. However, Lemonda testified that he never said anything about guns.
{¶17} Lemonda testified that when the truck pulled up, he did not know who
was driving it, despite knowing Davion since Davion was young. He testified that
he did not see Davion with a gun. However, Lemonda testified that the way Davion
stopped in the street, Lemonda thought he had a gun. Further, Lemonda was the
only witness who testified that Davion got out of the truck. Lemonda was adamant
at trial that Davion was coming toward the people at the residence.
{¶18} Morris testified at trial and acknowledged that he shot at the truck, but
he claimed he did so in self-defense, and without the intention of striking the driver.
Morris testified that his children were playing in the front yard and he saw the driver
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stop abruptly with a gun in his right hand, yelling things, so he shot at the driver to
protect his children.
{¶19} Morris claimed that earlier in the night when he knocked Latson down,
he saw a gun on the ground that he presumed to be Latson’s. Notably, the other
witnesses who were present and testified did not see a gun on the ground or see
Latson have a gun at all that day. Morris also claimed that he took the firearm he
thought was Latson’s, so Latson did not leave with the gun.
{¶20} The autopsy of Davion established that he died as a result of a gunshot
wound to the back. Davion’s back had abrasions that were consistent with a bullet
passing through the vehicle before striking him, and bullet trajectory rods further
indicated Davion was in the vehicle when he was shot.
{¶21} Importantly, contrary to Morris’s testimony, no firearm was located in
Davion’s crashed truck, near the crash site, or between the residence where the
shooting occurred and the crash site. No witness, other than Morris himself, testified
that Davion had a firearm. Finally, Morris was overheard on the night of the incident
stating, “It wouldn’t be my first body.” (State’s Ex. 4); (Tr. at 348).
Conviction and Sentencing
{¶22} Morris requested, and received, a jury instruction on self-defense.
Ultimately, Morris was acquitted of the purposeful murder charge; however, he was
convicted of all remaining charges and specifications. On April 18, 2023, Morris
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was sentenced to serve an indefinite prison term of 30-33 years to life in prison.1 A
judgment entry memorializing his sentence was filed that same day. It is from this
judgment that Morris appeals, asserting the following assignments of error for our
review.
First Assignment of Error
Appellant’s convictions are against the manifest weight of the
evidence.
Second Assignment of Error
The trial court erred by allowing the state to present extrinsic
evidence of Lemonda Pryor’s prior inconsistent statements and
without a limiting instruction.
Third Assignment of Error
R.C. 2967.271 (The Reagan Tokes Law) violated Appellant’s right
to a jury trial, the separation of powers doctrine, and his right to
due process.
First Assignment of Error
{¶23} In his first assignment of error, Morris argues that his convictions were
against the manifest weight of the evidence. More specifically, he argues that the
State failed to establish beyond a reasonable doubt that he was not acting in self-
defense.
1
The trial court merged the charges of murder, felonious assault of Davion, and discharge of a firearm on or
near prohibited premises for purposes of sentencing. The State elected to proceed to sentencing on the murder
charge.
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Standard of Review
{¶24} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. State v. Thompkins, 1997-Ohio-52. In doing so, this court must review
the entire record, weigh the evidence and all of the reasonable inferences, consider
the credibility of witnesses and determine whether in resolving conflicts in the
evidence, the factfinder “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” Id.{¶25} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State v.
DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524,
¶ 119.
Legal Standard Governing Self-Defense
{¶26} Under Ohio law, a person is permitted to act in self-defense. See State
v. Wilson, 2024-Ohio-776. Revised Code 2901.05(B)(1) describes the process of
raising this affirmative defense at trial and reads, in its relevant part, as follows:
If, at the trial of a person who is accused of an offense that involved
the person’s use of force against another, there is evidence presented
that tends to support that the accused person used the force in self-
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defense, * * * the prosecution must prove beyond a reasonable doubt
that the accused person did not use the force in self-defense * * *.
R.C. 2901.05(B)(1).
{¶27} Under R.C. 2901.05(B)(1) there are two burdens. See State v. Grant,
2023-Ohio-2720, ¶ 68 (3d Dist.). First, the defendant claiming self-defense has the
burden of production. State v. Palmer, 2024-Ohio-539, ¶ 18. A defendant must
produce evidence that “tends to support” his use of force in defending himself.”
Grant at ¶ 68. quoting State v. Estelle, 2021-Ohio-2636, ¶ 18 (3d Dist.). The
Supreme Court of Ohio has held that the burden “is not a heavy one” and that it
might be satisfied through the State’s own evidence. Palmer at ¶ 20.
{¶28} If the defendant produces evidence that tends to support that he acted
in self-defense, the burden then shifts to the state under its burden of persuasion to
prove beyond a reasonable doubt that the defendant did not use force in self-defense.
Wilson at ¶ 16. Under this burden shifting framework, the State must disprove one
of the following elements of self-defense beyond a reasonable doubt:
(1) that the defendant was not at fault in creating the situation giving
rise to the affray; (2) that the defendant has a bona fide belief that he
[or she] was in imminent danger of death or great bodily harm and
that his [or her] only means of escape from such danger was in the use
of such force; and (3) that the defendant did not violate any duty to
retreat or avoid the danger.
(brackets and numbering in original) State v. Messenger, 2022-Ohio-4562, ¶ 14,
quoting State v. Barnes, 2002-Ohio-68. Importantly, the elements of self-defense
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are cumulative, and a defendant’s claim of self-defense fails if any one of the
elements is not present. State v. Green, 2023-Ohio-4360, ¶ 107 (3d Dist.).
{¶29} As to the first element, “[i]t is well established that a person cannot
provoke a fight or voluntarily enter combat and then claim self-defense.” State v.
Canankamp, 2023-Ohio-43, ¶ 38 (3d Dist.), quoting State v. James, 2021-Ohio-
1112, ¶ 21 (2d Dist.).
{¶30} The second element of a self-defense claim is a combined subjective
and objective test. Grant, supra, at ¶ 70. Thus, “self-defense ‘is placed on the
grounds of the bona fides of defendant’s belief, and reasonableness therefor, and
whether, under the circumstances, he exercised a careful and proper use of his own
faculties.’” State v. Thomas, 1997-Ohio-269, quoting State v. Sheets, 115 Ohio St.
308, 310 (1926).
{¶31} “Part of this entails showing that the defendant used ‘only that force
that is reasonably necessary to repel the attack.” State v. Ray, 2013-Ohio-3671, ¶ 30
(12th Dist.), quoting State v. Bundy, 2012-Ohio-3934, ¶ 55 (4th Dist.). This
“requires consideration of the force that was used in relation to the danger the
accused believed he was in. * * * In both deadly and non-deadly force cases, ‘[i]f
the force used was so disproportionate that it shows a purpose to injure, self-defense
is unavailable.’ ” State v. Lane, 2023-Ohio-1305, ¶ 24 (6th Dist.), quoting State v.
Barker, 2022-Ohio-3756, ¶ 27 (2d Dist.). Finally, as to the third element, “[a] person
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has no duty to retreat before using force in self-defense * * * if that person is in a
place in which the person lawfully has a right to be.” R.C. 2901.09(B).
Analysis
{¶32} In order to establish beyond a reasonable doubt that Morris was not
acting in self-defense when he shot and killed Davion, the state had to show that
Morris was at fault in creating the situation or that Morris did not have a bona fide
belief that he was in imminent danger.2 See Messenger, supra, at ¶ 14. A reasonable
jury could have concluded that Morris was at fault in creating the situation based on
the evidence, or that Morris did not have a bona fide belief that he was in imminent
danger. Establishing either one of these issues defeats Morris’s self-defense claim.
State v. Green, 2023-Ohio-4360, ¶ 107 (3d Dist.).
{¶33} As to being at fault in creating the situation, when Morris fired three
shots at the truck Davion was driving, by his own admission, Morris did not know
who was in the truck. The driver, Davion, only shouted out the window to ask who
had hurt his father. The Supreme Court of Ohio has held that words alone are
generally not sufficient provocation to incite the use of deadly force. State v. Shane,
63 Ohio St.3d 630, 637, 590 N.E.2d 272 (1992).
{¶34} Moreover, although Morris claimed he saw Davion with a firearm, all
of the other witnesses who were present and testified at trial stated that they did not
2
Although there was a third avenue the state could have pursued to prove that Morris was not acting in self-
defense, that being that the defendant violated a duty to retreat, the state never contended that Morris violated
a duty to retreat.
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see Davion with a firearm. The jury was free to determine that Morris’s claim was
not credible, and that credibility determination is supported by the other witnesses’
testimony and by the fact that no firearm was ever located in or around the truck.
State v. Olsen, 2023-Ohio-2254, ¶ 57 (11th Dist.) (“A self-defense claim is generally
an issue of credibility.”). Based on the evidence presented, the jury could have
reasonably determined that Morris was at fault in creating the situation by shooting
at a man he did not know, who was not brandishing a deadly weapon.
{¶35} Even if the jury did not determine that Morris was at fault for creating
the situation, the jury could have reasonably determined that Morris was not in
imminent danger and that the force he used was disproportionate to any perceived
threat. Again, there is no indication that Davion had a firearm other than the bald
assertions of Morris in his testimony. Multiple witnesses, who were still friends with
Morris at the time of trial, testified that they did not see Davion with a firearm. A
reasonable jury could determine that shooting at a person who has not displayed a
firearm was disproportionate to the perceived threat. State v. Moore, 2023-Ohio-
2864, ¶ 14 (9th Dist.) (holding a jury is free to conclude that defendant shooting
unarmed victim was disproportionate to threat/not reasonably necessary under the
circumstances). Here, the jury was specifically instructed on Morris’s self-defense
theory and the jury rejected it.
{¶36} In sum, the record supports the jury’s determination in this matter that
the state established beyond a reasonable doubt that Morris was not acting in self-
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defense. See State v. Messenger, 2021-Ohio-2044, ¶ 49 (10th Dist.) (stating
conviction is not against the manifest weight of the evidence where jury did not
believe defendant’s self-defense claim). At the very least, this is not one of the rare
cases where the jury clearly lost its way or created a manifest miscarriage of justice.
Therefore, Morris’s first assignment of error is overruled.
Second Assignment of Error
{¶37} In his second assignment of error, Morris argues that the trial court
erred by permitting improper impeachment testimony of Lemonda. In addition, he
argues that the trial court erred by failing to provide an instruction to the jury that
the impeachment evidence was limited for that purpose only.
Standard of Review
{¶38} Generally, the admission or exclusion of evidence lies within the trial
court’s sound discretion, and we will not reverse absent an abuse of discretion and
material prejudice. State v. Baskin, 2019-Ohio-2071, ¶ 48 (3d Dist.), citing State v.
Conway, 2006-Ohio-2815, ¶ 62. An abuse of discretion is a decision that is
unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157
(1980).
{¶39} When evidence is erroneously admitted over objection of the
defendant, we review the matter to see if the error was harmless under Crim.R.
52(A). An error is harmless if it did not impact the substantial rights of the
defendant. State v. Morris, 2014-Ohio-5052, ¶ 23.
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{¶40} The decision of whether to give a jury instruction is also typically
within the sound discretion of the trial court. State v. Thompson, 2017-Ohio-792, ¶
11 (3d Dist.). However, where no objection was made to any failure to provide a
jury instruction, the issue is waived absent plain error. State v. Underwood, 3 Ohio
St.3d 12, (1983). Courts ordinarily should take notice of plain error “with utmost
caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” State v. Gardner, 2008-Ohio-2787, ¶ 78.
Analysis
{¶41} In order to address Morris’s argument that the trial court permitted
improper impeachment testimony of Lemonda Pryor, we must analyze the sequence
of events and the testimony leading to the state introducing Lemonda’s prior
inconsistent statement. Pryor was called as a court witness in this case and he
testified regarding the events of September 5, 2021. During the prosecution’s
questioning of Lemonda, he testified about the truck stopping in the road in front of
the residence at 168 South Perry Street, then the following exchange occurred:
Q. Okay. And at the time – well, I guess, after everything happened
you spoke with Detective Stechschulte, is that correct?
A. Yes.
Q. Okay. And at that time you told Detective Stechschulte that
someone had leaned out of the window and hollered something, is that
right?
A. I don’t remember telling him he leaned out. I remember Davion
getting out.
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Q. Okay. So your testimony today is that Davion got out of the car?
A. Yes.
***
Q. Okay. So it’s your testimony Davion steps out of the car, is saying,
“Which one of you—
A. Yeah.
Q. Okay. And then shots ring out?
A. Yeah.
***
Q. Okay.
And he’s outside of the car?
A. Yeah. With the door open.
***
Q. Okay. And, so, the shots ring out and Davion’s outside of the truck?
A. Yeah.
Q. Walking towards 168 Perry?
A. Yeah. He was coming towards it. Yes.
Q. Okay. What happens next?
A. I just heard shots firing.
Q. Okay. So, the shots fire.
A. When – when he pulled upon the scene he literally stomp on the
break [sic]. So, we already like, damn, who this is, so, we trying to
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take cover, you know what I’m saying. All in the mix of him saying
that he’s getting out of the car saying, “which one of you * * *” then
that’s when I heard three shots.
Q. And then Davion gets back in the car and drives away?
A. Yes.
***
Q. Okay. And you said you don’t remember telling Detective
Stechschulte that Davion only leaned out of the car?
A. If I would have said it. I don’t remember saying it like that. I
remember telling him that he was coming at us.
Q. Okay.
A. If I would have said – I might have said he leaned out the car
knowing that he was out of the car.
(Tr. at 356-359)
{¶42} Defense counsel also asked Lemonda about whether Davion had
exited the truck before being shot in the following exchange:
Q. Okay. So, when the car or the truck stopped you did see Davion
get out of the truck?
A. I didn’t even know it was Davion at first.
Q. You saw some—
A. Yeah.
Q. I don’t want to put words in your mouth. You saw someone get out
of the truck?
A. Yes.
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(Tr. at 382).
{¶43} The next time Lemonda’s statement was brought up was during
Detective Stechschulte’s direct examination. During that examination, the following
exchange occurred, leading to an objection by defense counsel:
Q. Detective, did you also speak with a Lemonda Pryor?
A. Yeah, I spoke with Lemonda.
***
Q. Okay. And you were present for Lemonda’s testimony yesterday?
A. Yes I was.
Q. And Lemonda testified that Davion Latson was outside of the car
when Lemonda heard the shots, is that correct?
A. Yes.
Q. Okay. Is that consistent with what he told you during his interview?
A. Not at all.
Q. Okay. The interview with Mr. Pryor, was that audio and video
recorded.
A. Yes, it was.
Q. Okay. If you were to view the portion of the interview – I guess,
did you review your interview with Mr. Pryor before coming to court
today?
A. Yes.
Q. And were you able to view the portion where Mr. Pryor explained
to you just hours after the incident where Davion was at when he was
shot?
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A. Yes.
[Defense Counsel]: Your Honor, at this point I’m going to have to
enter an objection. * * *
* * * [The trial court removes jury to speak with the attorneys about
the matter.] * * *
THE COURT: All right. You may be seated.
Okay. For the record, you were wanting to play the interview
with Lemonda Pryor, correct?
[Prosecutor]: Not the entire interview, Your Honor. I have –
THE COURT: No. I mean a portion of it.
[Prosecutor]: Correct. I have about an 18 second clip.
THE COURT: What did you have it marked as?
[Prosecutor]: I don’t have it marked I was just going to use it as –
THE COURT: Oh, okay.
[Prosecutor]: For impeachment purposes, Your Honor.
THE COURT: Okay. All right. So, there’s a question that exists about
whether he was – he, being Lemonda Pryor – Was given the
opportunity to admit or deny making the statement. If he admitted to
making the statement in question then you don’t get to prove it up
because you have through him.
[Prosecutor]: Correct.
* * * [The trial court takes a recess so attorneys can listen to
Lemonda’s testimony, then reconvenes and allow the attorneys to
argue the issue.] * * *
[Defense Counsel]: The objection would be that Mr. Pryor was not
directly confronted with his prior statement, alleged statement, to
Detective Stechschulte for him to either admit or deny. He says, “I
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don’t remember.” So, my feeling is that he was not directly fronted
[sic] by any prior inconsistent statement by the State of Ohio. And
because of that they’re not allowed at this point to try and show that
he was inconsistent now when he couldn’t even fair – full and fair, I
think, a full and fair opportunity to admit or deny the specific
statement he made.
***
THE COURT: Okay. Thank You. [Prosecutor]?
***
[Prosecutor]: In the recording that we just listened to of Lemonda
Pryor’s testimony during my direct examination. I asked him initially,
I believe, you didn’t tell Detective Stechschulte that speaking of
Davion Latson getting out of the vehicle when you spoke with
Detective. Something along those lines. And he said He didn’t
remember.
Then minutes later in the direct I kind of circled back and I,
again, asked him. And I said something along the lines of, so you don’t
remember telling Detective Stechschulte that Davion was leaning out
of the car. And that’s the point where he said something along of, I
don’t remember. I remember him being in the car. I remember telling
Detective Stechschulte he was leaning out of the car, he was in the
car, something along those lines, Your Honor. Or, I’m sorry. I
remember telling Detective Stechschulte he got out, meaning in the
interview with Detective Stechschulte Lemonda had told Detective
Stechschulte that Davion Latson got out of the car, which is the –
THE COURT: The words I have is he told Detective Stechschulte “He
was coming at us.”
[Prosecutor]: He was coming at us. Thank you, Your Honor. * * *
And so, Your Honor, the position of the state is that the 18
second clip that I’m attempting to play solely for impeachment, not to
mark as an exhibit, not to put in substantively, is where Mr. Pryor
adamantly denies that Davion Latson ever got out of the car. And so
when he was confronted here in court it was his testimony that he
remembered Davion coming at them. And then in the interview it was
his statement that Davion never got out of the car.
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THE COURT: Okay. [Defense Counsel], I understand your objection.
* * * But, the testimony of * * * Lemonda Pryor was that he told
Detective Stechschulte he, meaning Davion Latson, was coming at us.
The 18 second clip that then the State played off the record for all of
us -- * * * He’s pretty adamant that Davion did not get out. He did not
get out. He did not get out. He says it several times. So, I am going to
overrule the objection and allow that to be played.
(Tr. at 674-682).
{¶44} Following the trial court’s ruling, the trial resumed and the clip of
Lemonda’s interview was played for the jury.
{¶45} On appeal, Morris argues that the prosecutor did not provide a full and
fair opportunity for Lemonda to admit or deny whether he told the detective in the
interview that Davion never left his vehicle. Because of this, Morris argues that the
trial court erred by permitting extrinsic evidence of a prior inconsistent statement.
{¶46} Under Evid.R. 613(B), extrinsic evidence of a prior inconsistent
statement by a witness is admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny
the statement and the opposite party is afforded an opportunity to
interrogate the witness on the statement or the interests of justice
otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action
other than the credibility of a witness;
(b) A fact that may be shown by extrinsic evidence under Evid.R.
608(A), 609, 616(A), or 616(B);
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Case No. 1-23-24
(c) A fact that may be shown by extrinsic evidence under the common
law of impeachment if not in conflict with the Rules of Evidence.
{¶47} When applying Evid.R. 613(B) to the case sub judice, we emphasize
that it is not clear that Lemonda specifically denied telling the detective that Davion
got out of the vehicle. The closest he came to denying the statement was when he
said, “If I would have said it. I don’t remember saying it like that. I remember telling
him that he was coming at us.” During the questioning, Lemonda repeatedly
equivocated, indicating he did not remember what he told the detective. He also
attempted to explain and clarify his earlier statement by indicating he “might have
said he leaned out the car knowing that he was out of the car.”
{¶48} We find that it is not clear that Lemonda denied making the statement
such that extrinsic evidence was admissible under Evid.R. 613(B). See State v.
Greene, 2024-Ohio-35, ¶ 51 (12th Dist.). Importantly, Lemonda was never directly
confronted with his prior interview or a transcript of the interview for him to
specifically deny making the statement; rather, Detective Stechschulte was
confronted with Lemonda’s prior interview. Where the State fails to lay a proper
foundation for the introduction of impeachment evidence, that evidence is
inadmissible. State v. Shook, 2014-Ohio-3987, ¶ 55 (3d Dist.) (holding that there
was no basis to introduce a prior inconsistent statement where witness did not deny
making statement); State v. Sullens, 2017-Ohio-4081, ¶ 16 (10th Dist.).
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Case No. 1-23-24
{¶49} However, even though the impeachment evidence was erroneously
admitted, the error did not result in prejudice that affected the outcome of the
proceedings. Because Morris objected to the purported “impeachment” evidence,
we review the erroneous admission for harmless error. In order to find harmless
error, we would have to determine that Morris was prejudiced by the introduction
of the evidence. State v. Morris, 2014-Ohio-5052, ¶ 23.
{¶50} Here, Lemonda’s story was an outlier, conflicting with all the other
witnesses who testified, including Morris. The physical evidence also contradicted
Lemonda’s statement that Davion was out of the vehicle at the time of the shooting.
Given all the testimony and physical evidence, the record demonstrates that any
error had no effect on the verdict, thus the error would be harmless beyond a
reasonable doubt.
{¶51} Nevertheless, the admission of extrinsic evidence for impeachment
under Evid.R. 613(B) requires a limiting instruction to inform the jury that the prior
statement is only to be considered for impeachment purposes. State v. Harrison,
2022-Ohio-4627, ¶ 28 (2d Dist.), State v. Dyer, 2017-Ohio-426, ¶ 57 (11th Dist.),
citing State v. Armstrong, 2004-Ohio-5635, ¶ 109 (11th Dist.); State v. Fields, 2007-
Ohio-5060, ¶ 17 (8th Dist.). Here, the state concedes that no limiting instruction was
provided and that an instruction should have been given.
{¶52} However, no jury instruction related to Evid.R. 613(B) was requested
by Morris, thus we review the matter for plain error. “Notice of plain error under
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Case No. 1-23-24
Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
{¶53} The question then becomes whether the failure to give the limiting
instruction affected the trial’s outcome. Similar to the Second District Court of
Appeals in Harrison, supra, we do not find that the error here affected Morris’s
substantial rights because there was significant evidence to support Morris’s
convictions. It is undisputed that Morris shot and killed Davion. The only question
was whether Morris was acting in self-defense. The jury was instructed on self-
defense and found Morris’s claim not to be credible. The jury’s determination was
supported by the testimony of others and the evidence. Thus, we find no prejudicial
error here. Accordingly, Morris’s second assignment of error is overruled.
Third Assignment of Error
{¶54} In his third assignment of error, Morris argues that the Reagan Tokes
Law is unconstitutional. However, in State v. Hacker, 2023-Ohio-2535, the
Supreme Court of Ohio determined that the Reagan Tokes Law was constitutional,
rejecting similar claims to those made by Morris. Based on the holding in Hacker,
Morris's third assignment of error is overruled.
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Conclusion
{¶55} Having found no error prejudicial to Morris in the particulars assigned
and argued, the assignments of error are overruled and the judgment of the Allen
County Common Pleas Court is affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/jlm
** Judge Gene A. Zmuda of the Sixth District Court of Appeals, sitting by
Assignment of the Chief Justice of the Supreme Court of Ohio.
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