State v. Harper , 2013 Ohio 3897 ( 2013 )

[Cite as State v. Harper, 2013-Ohio-3897.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 13 CA 15
HENRY HARPER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County
Court of Common Pleas, Case No.
10CR000070
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 9, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN HENRY N. HARPER #A638-859
Prosecuting Attorney P.O. Box 540
139 West 8th Street 68518 Bannock Road
Cambridge, OH 43725 St. Clairsville, OH 43950
[Cite as State v. Harper, 2013-Ohio-3897.]
Gwin, P.J.
{¶1} Defendant-appellant Henry N. Harper [“Harper”], appeals a judgment of
the Court of Common Pleas of Guernsey County, Ohio, which overruled his motion for
“Grand Jury Transcripts pursuant to Ohio Revised Code 2941.26 Variance.” Plaintiff-
appellee is the State of Ohio.
Facts and Procedural History
{¶2} On May 25, 2010, the Guernsey County Grand Jury indicted Harper on
one count of having weapons while under disability in violation of R.C. 2923.13, with a
firearm specification, a felony of the third degree, one count of tampering with evidence
in violation of R.C. 2921.12(A)(1), a felony of the third degree, one count of discharge of
firearm on or near prohibited premises in violation of R.C. 2923.162, a misdemeanor of
the first degree, and one count of kidnapping in violation of R.C. 2905.01(A)(1) and (2),
with a firearm specification, a felony of the first degree. At his arraignment on June 8,
2010, Harper pled not guilty to the charges.
{¶3} The matter proceeded to jury trial. The jury found Harper guilty of having
weapons while under disability, discharge of firearm on or near prohibited premises and
kidnapping. The jury also found that Harper, with respect to the kidnapping charge, had
a firearm on or about his person or under his control. The jury found Harper not guilty of
the tampering charge. The trial court sentenced Harper to an aggregate term of
imprisonment of eight years.
{¶4} Harper filed a timely appeal to this Court. This court upheld Harper’s
convictions and sentences. State v. Harper, 5th Dist. Guernsey No. 2010-CA-44, 2011-
Ohio-4568.
Guernsey County, Case No. 13 CA 15 3
{¶5} On November 22, 2011, Harper filed a Motion for Sentence Reduction in
the trial court. The trial court denied the Motion for Sentence Reduction on January 10,
2012.
{¶6} On January 19, 2012, Harper filed a Petition for Post-Conviction Relief.
Harper alleged that the trial court had erred in failing to inform his wife, Tina Harper that
she did not have to testify against Harper, that his trial counsel, Lindsey Donehue, was
ineffective in failing to object when Harper's wife was called as a witness against him,
and that his property had been illegally searched without a search warrant. Harper also
alleged that his conviction for having weapons while under disability was based on
perjured testimony from Detective Sam Williams, that Williams altered Harper's Miranda
rights form, that his convictions for kidnapping and having weapons while under
disability were against the manifest weight and sufficiency of the evidence, and that his
trial counsel was ineffective in failing to obtain any evidence on Harper's behalf or to
subpoena witnesses. The trial court denied Harper's petition pursuant on January 25,
2012, finding that the petition was not timely filed.
{¶7} Harper appealed from the trial court's January 10, 2012 Judgment Entry,
he also appealed from the trial court's January 25, 2012 Judgment Entry. Subsequently,
via an Opinion filed on July 30, 2012 in State v. Harper, 5th Dist. Guernsey Nos. 12 CA
000003, 12 CA 000008, 2012-Ohio-3541, this Court affirmed the judgment of the trial
court in both cases based on res judicata.
{¶8} On March 14, 2012, while the above cases were pending, Harper filed a
Second Petition for Post-Conviction Relief. Harper alleged that police had committed an
illegal search and seizure of his home, which his wife, who testified against him, was
Guernsey County, Case No. 13 CA 15 4
threatened with criminal charges and was lied to by and illegally detained by police, that
Detective Sam Williams tampered with evidence, including Harper's Miranda rights
form, and that Williams' trial testimony was inconsistent. Harper also alleged that there
was insufficient evidence supporting the kidnapping charge against him and that his
conviction was against the manifest weight of the evidence, and that his trial counsel
was ineffective. Harper also alleged that his bail was excessive and that there was
insufficient evidence supporting his conviction for having weapons while under disability.
Pursuant to a Judgment Entry filed on May 17, 2012, the trial court denied Harper's
petition, finding that it was not timely filed and that Harper either raised, or could have
raised, the same issues in his direct appeal.
{¶9} Harper appealed from the trial court's May 17, 2012 Judgment Entry
denying his Second Petition for Post–Conviction Relief. This Court affirmed the
judgment of the trial court on November 5, 2012, finding that the second petition for post
conviction relief was untimely, and all issues raised therein were res judicata. State v.
Harper, 5th Dist. Guernsey No. 12 CA 15, 2012-Ohio-5161.
{¶10} On September 21, 2012, during the pendency of his appeal from the
judgment denying his second petition for post-conviction relief, Harper filed a petition to
vacate or set aside his judgment of conviction and sentence. The trial court denied this
petition on September 24, 2012. This Court affirmed the judgment of the trial court on
April 26, 2013, finding that issues raised therein were res judicata. State v. Harper, 5th
Dist. Guernsey No. 12 CA 22, 2013-Ohio-1781.
{¶11} On March 22, 2103, Harper filed a motion in the trial court for “Grand Jury
Transcripts pursuant to Ohio Revised Code 2941.26 Variance.” By Judgment Entry filed
Guernsey County, Case No. 13 CA 15 5
April 17, 2013, the trial court denied the motion finding Harper did not demonstrate a
particularized need.
Assignments of Error
{¶12} Harper raises two pro se assignments of error,
{¶13} “I. THE TRIAL COURT COMMITTED ERROR IN THE DENIAL OF THE
MOTION FOR GRAND JURY TRANSCRIPTS PURSUANT TO OHIO REVISED CODE
2941.26 VARIENCE. [SIC.]
{¶14} “II. THE TRIAL COURT COMMITTED ERROR IN FAILING TO
ACKNOWLEDGE THE APPELLANT-DEFENDANT’S PRESENTATION OF A
PARTICULARIZED NEED FOR THE GRAND JURY TRANSCRIPTS PURSUANT TO
O.R.C. 2941.26.”
Pro se Appellants
{¶15} We understand that Harper has filed this appeal pro se. Nevertheless,
“like members of the bar, pro se litigants are required to comply with rules of practice
and procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP-116, 2006-
Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128,
¶11. We also understand that “an appellate court will ordinarily indulge a pro se litigant
where there is some semblance of compliance with the appellate rules.” State v.
Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶16} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d
528(2001), the Supreme Court noted, “a reviewing court cannot add matter to the
record before it that was not a part of the trial court's proceedings, and then decide the
appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377
Guernsey County, Case No. 13 CA 15 6
N.E.2d 500(1978).” It is also a longstanding rule "that the record cannot be enlarged by
factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist.No. 411, 1980 WL
350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio
App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in
any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d
122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d
385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts in
Harper’s brief that are outside of the record.
{¶17} In the interests of justice, we shall attempt to consider Harper’s
assignments of error.
I & II
{¶18} Harper’s first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶19} Harper made his request for grand jury transcripts nearly three years after
the jury returned their verdicts of guilty. Ohio courts, including this court, have held that
where “there was no pending matter within the jurisdiction of the trial court involving
defendant's criminal case that would necessitate further discovery,” a trial court lacks
authority to grant a defendant's motion for production of grand jury testimony. State v.
Russell, 10th Dist. Franklin App. No. 05AP–1325, 2006–Ohio–5945, ¶ 10, citing State v.
Short, 8th Dist. Cuyahoga App. No. 83492, 2004–Ohio–2695, ¶ 7 (“With no pending
motions that would necessitate further discovery, the judge lacked the jurisdiction to
review the particularized need for an in camera inspection”); State v. Bridgewater, 10th
Dist. Franklin App. No. 12AP-428, 2021-Ohio-6167, ¶9; See also State v. Herring, 5th
Guernsey County, Case No. 13 CA 15 7
Dist. Stark App. No.1996 CA 00385, 1997 WL 219249 (Mar. 17, 1997) (court “unaware
of any procedural or substantive rule of law which authorizes the court to, in essence,
order post-conviction discovery absent the filing of a post-conviction relief petition
supported by appropriate affidavits”). Furthermore, “[t]here is no provision for
conducting discovery in the post-conviction process.” State ex Rel. Love v. Cuyahoga
County Prosecutor’s Office, 86 Ohio St.3d 279, 281, 1999-Ohio-314, 718 N.E.2d
426(1999).
{¶20} Additionally, even assuming the trial court had the authority to consider
defendant's motion, we find that the trial court did not abuse its discretion in concluding
that defendant failed to demonstrate a particularized need for disclosure of the grand
jury testimony.
{¶21} The Supreme Court of Ohio has stated, “Grand jury proceedings are
secret, and an accused is not entitled to inspect grand jury transcripts either before or
during trial unless the ends of justice require it and there is a showing by the defense
that a particularized need for disclosure exists which outweighs the need for secrecy.”
State v. Greer, 66 Ohio St. 2d 139, 420 N.E. 2d 982(1981), paragraph two of the
syllabus. A particularized need is established “when the circumstances reveal a
probability that the failure to provide the grand jury testimony will deny the defendant a
fair trial” of the allegations placed in issue by the witnesses' testimony. State v. Davis,
38 Ohio St.3d 361, 365, 528 N.E.2d 925(1988), quoting State v. Sellards (1985), 17
Ohio St.3d 169, 173, 478 N.E.2d 781(1985).
{¶22} Impeachment through material inconsistencies may be a proper basis for
disclosure of grand jury testimony, but that purpose alone is not sufficient. State v.
Guernsey County, Case No. 13 CA 15 8
Patterson, 28 Ohio St.2d 181, 277 N.E.2d 201(1971). The claim that a witness's grand
jury testimony may differ from trial testimony is insufficient to show a particularized
need. State v. Henness, 79 Ohio St.3d 53, 62, 679 N.E.2d 686(1997).
{¶23} It has long been held that Crim. R. 16(B)(1)(g) which permits the accused
to utilize inconsistencies in a witness’s prior statements does not apply to the witness’s
grand jury testimony. Greer, 66 Ohio St. 2d at 149. As this court has recognized, the
mere fact that the testimony before the grand jury may contain inconsistencies does not
rise to the level of a particularized need. State v. Cherry, 107 Ohio App.3d 476, 478-
479, 669 N.E.2d 45 (5th Dist. 1955). Grand jury testimony is not subject to cross-
examination. Therefore, the testimony itself is not admissible pursuant to Evid. R.
801(b)(1)(a).
{¶24} Based upon a thorough review of the record, Harper’s request was
nothing more than a fishing expedition for possible inconsistencies. Harper did not
demonstrate particularized need based on a showing that there was a reason to
suspect material inconsistencies.
{¶25} Harper’s first and second assignments of error are overruled.
Guernsey County, Case No. 13 CA 15 9
{¶26} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Guernsey County, Ohio, is hereby affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 0815
[Cite as State v. Harper, 2013-Ohio-3897.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
HENRY HARPER :
:
:
Defendant-Appellant : CASE NO. 13 CA 15
For the reasons stated in our accompanying Memorandum-Opinion, the decision
of the Court of Common Pleas, Guernsey County, Ohio, is hereby affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. CRAIG R. BALDWIN