State v. Harris , 2021 Ohio 371 ( 2021 )

[Cite as State v. Harris, 2021-Ohio-371.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190576
TRIAL NO. B-1900682
Plaintiff-Appellee, :
VS. : O P I N I O N.
DIOVANTAE HARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 10, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After using a firearm to rob a victim, the perpetrator—presumably
unaware that the police were searching for him—sent a text message to the victim
offering to sell her cheap drugs. Police capitalized on this blunder to orchestrate a
controlled drug buy, which culminated in the arrest of Defendant-Appellant
Diovantae Harris. Mr. Harris now appeals his convictions for aggravated robbery
and having weapons under a disability. We, however, find no merit in his
assignments of error and affirm the judgment below.
I.
{¶2} On New Year’s Eve, 2018, Jennifer Raisor—who identified herself at
trial as a prostitute—arranged to rendezvous with a new Cincinnati client who
responded to one of her online ads. She agreed to meet the client at 2417 Sunny Hill
Drive, also known as Fay Apartments. When Ms. Raisor first arrived at the address,
she could not locate her client, so she drove away. An ensuing telephone call by her
client, however, lured her back.
{¶3} Ms. Raisor returned to Fay Apartments, finding her client and
chatting with him for several minutes in a well-lit parking lot. When the client began
steering her to a darker area toward the back of the lot, however, Ms. Raisor started
to suspect foul play. The client claimed that his baby’s mother lived in the front of
the building, but this raised further red flags for Ms. Raisor, prompting her to cancel
the engagement. As she turned to walk away, however, the client pulled out a gun
and jabbed it in the back of her head.
{¶4} The client threatened Ms. Raisor that if she moved or said anything, he
would “cap” her. He instructed her to “lay everything on the ground,” and took her
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wallet, phone, purse, and vape. In her wallet, Ms. Raisor carried her late sister’s
driver’s license and social security card. She asked her assailant if she could keep the
license because of its sentimental value, but he refused. He handed Ms. Raisor her
car keys and instructed her to walk quietly back to the car, or he would shoot. She
obliged, getting in her car and pulling away.
{¶5} Lost without her phone, Ms. Raisor struggled to find her way back to
her hotel. She drove around looking for highway signs that she recognized. As she
wandered, she pulled up behind a dark green car that she thought was acting “all
nervous and suspicious.” Ms. Raisor believed that she might have stumbled upon
her assailant’s get-away car, so she pursued the car for a while and jotted down its
license plate. When she saw a patrol car, she pulled up beside it and recounted the
whole affair to the police officer. Apparently not that concerned, the officer
professed to be too busy to help her, and suggested that she call 911 (which proved
difficult since her phone had been stolen). Eventually, Ms. Raisor did make it back
to her hotel, where she called the police and reported the robbery. She described her
assailant as having a “medium” skin tone, no facial hair, and appearing to be
“mixed”—possibly Italian and African American.
{¶6} No further developments in the case took place until weeks later, when
Ms. Raisor received an unexpected text message on her (new) phone from the same
number used to set up the robbery. The text offered to sell drugs at a cheap price,
and Ms. Raisor relayed the information to the police. Detective Mark Longworth,
who was assigned to investigate the robbery, coordinated with the department’s
Violent Crime Squad to set up a controlled buy from the number. On February 6,
2019, Officer Jason Bley arranged the buy, and a police informant purchased $40 of
(ultimately fake) drugs from an unknown individual. The buy devolved into a foot
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OHIO FIRST DISTRICT COURT OF APPEALS
chase, as the seller dashed into a nearby building: 2412 Sunnyhill Drive. Officers
knocked on the door and surrounded the house. Eventually, Mr. Harris answered
the door, at which point the police arrested him.
{¶7} Detective Longworth obtained consent from the lessee of the home—
who is also the mother of Mr. Harris’s child—to search the premises. Under the
couch, police found a pile of IDs, including the license and social security card of Ms.
Raisor’s late sister. Police also recovered the buy money from the fake drug
transaction. Finally—and most significantly—police found a cell phone registered to
the number used to set up both the robbery and the drug transaction. Upon
searching this cell phone, police discovered hundreds of pictures of Mr. Harris, as
well as a screen shot showing Mr. Harris’s name, birthday, driver’s license number,
and address. One photograph of Mr. Harris showed him playing video games in the
2412 Sunnyhill Drive apartment with what appeared to be a handgun next to him.
Another screenshot showed an advertisement for Ms. Raisor’s escort services.
{¶8} After Mr. Harris’s arrest, police prepared a photo lineup and presented
it to Ms. Raisor, who positively identified Mr. Harris as her assailant. Mr. Harris was
convicted in a jury trial of robbery, aggravated robbery with a firearm specification
and having weapons while under a disability. The trial court merged the robbery and
aggravated robbery offenses, and the state elected to proceed to sentencing on the
aggravated robbery charge.
{¶9} The trial court sentenced Mr. Harris to six years of incarceration for
aggravated robbery, two years for weapons under disability, and the mandatory three
years for the firearm specification. It set the two-year weapons under disability
sentence to run concurrently with the six-year aggravated robbery sentence, and the
three-year firearm specification to run consecutively to and prior to the aggravated
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OHIO FIRST DISTRICT COURT OF APPEALS
robbery sentence, for a total sentence of nine years. Mr. Harris now appeals his
convictions and his sentences.
II.
{¶10} Mr. Harris raises four assignments of error on appeal. He challenges
the weight and sufficiency of the evidence supporting his convictions, claims that he
received ineffective assistance of counsel, and contests the trial court’s sentencing
findings. We find no merit in these assignments of error and affirm Mr. Harris’s
convictions and sentences.
A.
{¶11} To determine whether a conviction is supported by sufficient evidence,
we inquire “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. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus; State v. Curry, 1st Dist. Hamilton
No. C-190107, 2020-Ohio-1230, ¶ 11. Whether the evidence suffices to sustain a
verdict poses a question of law, which we review de novo. State v. Jackson, 1st Dist.
Hamilton Nos. C-180159 and C-180209, 2020-Ohio-80, ¶ 11.
{¶12} To obtain a guilty verdict for aggravated robbery, the state must prove
that Mr. Harris “had a deadly weapon on his person or under his control and either
had displayed or had brandished it, indicated that he had possessed it, or used it
while attempting or committing a theft offense * * * .” State v. Todd, 1st Dist.
Hamilton No. C-020559, 2003-Ohio-3056, ¶ 9. To prove a three-year firearm
specification, the state had to “prove beyond a reasonable doubt that the offender
possessed an operable firearm” and that he “displayed the firearm, brandished the
firearm, indicated that [he] possessed the firearm, or used it to facilitate the offense.”
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. Brown, 2019-Ohio-3349, 141 N.E.3d 661, ¶ 10-12 (1st Dist.), citing R.C.
2941.145(A). See R.C. 2929.14(B)(1)(a)(ii). Finally, to prove a weapons under
disability charge, the state had to show that Mr. Harris “knowingly acquire[d], ha[d],
carrie[d], or use[d] any firearm or dangerous ordnance and * * * ‘ha[d] been
convicted of any felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse.’ ” State v. Vaughn,
2019-Ohio-1026, 133 N.E.3d 997, ¶ 23 (2d Dist.), quoting R.C. 2923.13(A)(3). The
parties stipulated at trial that Mr. Harris had a prior conviction for a drug offense.
{¶13} There is little doubt that the person who robbed Ms. Raisor could be
convicted for aggravated robbery with a firearm specification. Although defense
counsel posited that the gun used in the robbery might have been fake, Ms. Raisor
testified that the gun (which she saw clearly in the lit parking lot) appeared “very
real” to her. The assailant’s threats to “cap” Ms. Raisor certainly bolstered that
conclusion, in line with our prior authority on this question. See Brown at ¶12 (the
state may use “circumstantial evidence,” such as specific threats to use a firearm, to
prove the defendant’s possession of an operable firearm). Mr. Harris’s sufficiency of
the evidence argument thus hangs entirely on whether the evidence could identify
him as the gun-wielding assailant.
{¶14} On appeal, Mr. Harris insists that several pieces of evidence undercut
the reliability of Ms. Raisor’s identification. He places particular emphasis on her
initial description to police of her assailant as a “mixed” man with “medium” skin
tone and no facial hair, arguing that his dark complexion, goatee, and facial tattoos
should eliminate him as a suspect. He further depicts Ms. Raisor’s account of
following a green car from the crime scene as “fantastical,” and her demeanor on the
stand as “laughing and joking around.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} But Ms. Raisor explained and addressed each of these issues in her
testimony, and she repeatedly affirmed her prior identification of Mr. Harris. See
State v. Peelman, 1st Dist. Hamilton No. C-090686, 2010-Ohio-4472, ¶ 8 (witness’s
repeated identification of defendant as the robber was sufficient to convict). Her
identification was corroborated by strong circumstantial evidence that Mr. Harris
was involved in the robbery, including his connections to the phone used to set up
the robbery, the location of the robbery just a few doors down from his residence,
and his unexplained possession of Ms. Raisor’s sister’s ID and social security card.
See State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2020-Ohio-5616, ¶ 31
(“The state may use direct evidence, circumstantial evidence, or both, in order to
establish the elements of a crime.”). A rational juror could certainly review the
evidence and testimony in this case and find it sufficient to identify Mr. Harris as the
assailant. We consequently overrule Mr. Harris’s first assignment of error.
B.
{¶16} Next, when reviewing a challenge to the manifest weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). We must “review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and created a manifest miscarriage of justice.” State v. Powell, 1st
Dist. Hamilton No. 190508, 2020-Ohio-4283, ¶ 16, citing Thompkins at 397.
{¶17} Mr. Harris’s weight of the evidence challenge fails for many of the
same reasons as his sufficiency challenge. His argument boils down to belittling the
victim’s testimony and inviting us to disregard it.
{¶18} To be sure, there are aspects of Ms. Raisor’s testimony that the defense
could (and did) use to question the accuracy of her identification. But her testimony
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OHIO FIRST DISTRICT COURT OF APPEALS
certainly cannot be characterized as “so unreliable or unworthy of belief that the trier
of fact lost its way and created a manifest miscarriage of justice * * * .” State v. Hsu,
2016-Ohio-4549, 66 N.E.3d 1124, ¶ 41 (1st Dist.). The jury had an opportunity to
observe Ms. Raisor’s demeanor on the stand. Her account of events was thoroughly
explored and challenged on cross-examination. “[T]he jury ‘is the sole judge of the
evidence and the credibility of the witnesses. It may believe or disbelieve any witness
or accept part of what a witness says and reject the rest.’ ” Todd, 1st Dist. Hamilton
No. C-020559, 2003-Ohio-3056, at ¶ 12, quoting State v. Antill, 176 Ohio St. 61, 67,
197 N.E.2d 548 (1964). The jury evidently found Ms. Raisor to be a credible witness,
and it is not our place to overturn that credibility determination on appeal. We
therefore overrule Mr. Harris’s second assignment of error.
C.
{¶19} In his third assignment of error, Mr. Harris maintains that his trial
counsel’s failure to employ an expert witness to conduct fingerprint testing on the
phone and ID recovered by police constituted ineffective assistance of counsel. To
succeed in this Sixth Amendment claim, Mr. Harris “must demonstrate that (1) trial
counsel’s performance fell beneath an objective standard of reasonableness, and (2)
but for this deficient performance, a reasonable probability exists that the outcome
would differ.” State v. Williams, 1st Dist. Hamilton No. C-180588, 2020-Ohio-1368,
¶ 21, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052,
80 L.E.2d 674 (1984). In reviewing a claim for ineffective assistance of counsel, we
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538
N.E.2d 373 (1989), quoting Strickland at 689.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Mr. Harris’s ineffective assistance claim fails under both of the
Strickland prongs. In the first place, the “decision whether to call a witness is
generally a matter of trial strategy * * * .” State v. Krzywkowski, 8th Dist. Cuyahoga
Nos. 83599, 83842 and 84056, 2004-Ohio-5966, ¶ 20, citing State v. Williams, 74
Ohio App.3d 686, 694, 600 N.E.2d 298 (8th Dist.1991). “[I]n many criminal cases
trial counsel's decision to not seek expert testimony ‘is unquestionably tactical
because such an expert might uncover evidence that further inculpates the
defendant.’ ” State v. Rutter, 4th Dist. Hocking No. 02CA17, 2003-Ohio-373, ¶ 27,
quoting State v. Glover, 12th Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392, ¶
25. If counsel in this case had retained an expert to test the phone and ID for
fingerprints, and Mr. Harris’s fingerprints appeared on either item, that fact would
have torpedoed the defense’s main argument of mistaken identity. The decision not
to risk this outcome—and to question Mr. Harris’s connection to the phone and ID
through other means at trial—falls “squarely within the ambit of trial strategy.” State
v. Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-3640, ¶
41.
{¶21} Next, even assuming that the fingerprint test results would have
revealed none of his prints, Mr. Harris cannot show prejudice by the absence of
fingerprint evidence at trial. The state obviously did not need to prove that Mr.
Harris’s fingerprints were on the phone or ID to convict; it had additional
inculpatory evidence at its disposal. And testimony that Mr. Harris’s fingerprints
were not on the phone or ID—or that another individual’s fingerprints were—would
hardly exonerate his involvement in the robbery. Mr. Harris’s contention in his
appellate brief that if his prints were not on the cell phone, then he would have been
found not guilty, represents little more than “pure[] speculat[ion].” Id. at ¶ 38. Such
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OHIO FIRST DISTRICT COURT OF APPEALS
“[c]onclusory statements that the outcome would have been different, without more,
are not enough to carry a defendant's burden on the issue of prejudice.” Williams,
1st Dist. Hamilton No. C-180588, 2020-Ohio-1368, at ¶ 22.
{¶22} Because trial counsel’s decision not to retain an expert witness to
conduct fingerprint testing fell within the scope of reasonable trial strategy, and Mr.
Harris has not shown that the trial outcome would have differed with the benefit of
this evidence, we overrule his third assignment of error.
D.
{¶23} In his final assignment of error, Mr. Harris contends that the record
below does not support the sentencing court’s findings. Although he concedes that
his nine-year aggregate sentence fell within the statutory range, he insists that the
specific circumstances of his crime—including the fact that no one was hurt and all
stolen goods were recovered—cries out for the minimum sentence. He urges us to
remand his case for imposition of a minimum sentence of six years, pursuant to our
power under R.C. 2953.08(G)(2)(a) to “reduce or otherwise modify” a sentence that
is unsupported by the record.
{¶24} “Before a reviewing court can modify or vacate a felony sentence, it
must clearly and convincingly find that the sentence is contrary to law or that the
record does not support the trial court's findings.” State v. Hutcherson, 1st Dist.
Hamilton No. C-190627, 2020-Ohio-5321, ¶ 9. In this case, we see no question about
the propriety of consecutive sentences in light of R.C. 2929.14(C)(1)(a)’s mandate
that the three-year firearm specification sentence run “consecutively to and prior to”
the sentence for aggravated robbery. The only issue remaining is whether the trial
court erred by imposing a six-year sentence for aggravated robbery, rather than the
three-year minimum. See R.C. 2929.14(A)(1)(a).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} The Ohio Supreme Court recently clarified that “[n]othing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence
that best reflects compliance with R.C. 2929.11 and 2929.12.” State v. Jones, Slip
Opinion No. 2020-Ohio-6729, ¶ 42. Our review of whether a sentence is supported
by the record under R.C. 2953.08(G)(2) is limited to the specific statutes enumerated
in R.C. 2953.08(G)(2)(a), which include: R.C. 2929.13(B), R.C. 2929.13(D), R.C.
2929.14(B)(2)(e), R.C. 2929.14(C)(4), and R.C. 2929.20(I). Id. at ¶ 31, 37.
{¶26} In his brief, Mr. Harris fashions no arguments concerning the five
enumerated provisions in R.C. 2953.08(G)(2)(a). We have reviewed the listed
statutes independently and do not believe that any apply to the record at hand.
Insofar as Mr. Harris’s arguments about a lack of physical injury to Ms. Raisor
implicate the sentencing factors in R.C. 2929.12, the recent Jones decision forecloses
any R.C. 2953.08(G)(2) modification of his sentence on R.C. 2929.11 or 2929.12
grounds. Even if Mr. Harris had properly raised an R.C. 2929.12 argument, the trial
court’s extensive colloquy with counsel and Mr. Harris at sentencing—as well as its
findings concerning Mr. Harris’s prior convictions and incarceration—support its
decision to impose more than the minimum sentence. We therefore overrule Mr.
Harris’s fourth assignment of error.
III.
{¶27} Because we find no merit in any of Mr. Harris’s four assignments of
error, we affirm his convictions and sentences.
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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