State v. Whitfield

[Cite as State v. Whitfield, 2023-Ohio-240.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29442
:
v. : Trial Court Case No. 2021 CR 1185
:
CALEB WHITFIELD : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
...........
OPINION
Rendered on January 27, 2023
...........
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee
CHARLES M. BLUE, Attorney for Appellant
.............
TUCKER, J.
{¶ 1} Caleb Whitfield appeals from his conviction following a jury trial on charges
of aggravated vehicular homicide, two counts of vehicular assault, failure to comply with
the order or signal of a police officer, and resisting arrest.
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{¶ 2} Whitfield contends the trial court erred in failing to dismiss his indictment on
speedy-trial grounds. He challenges his convictions as being based on legally insufficient
evidence and being against the manifest weight of the evidence. He also argues that the
trial court erred in allowing the State to introduce evidence of a prior juvenile adjudication
and in refusing to allow him to introduce certain relevant evidence. Finally, he asserts that
the cumulative effect of the foregoing errors deprived him of a fair trial.
{¶ 3} For the reasons set forth below, we conclude that no speedy-trial violation
occurred. With the exception of a specification accompanying the vehicular assault
charges, we find that Whitfield’s convictions were based on legally sufficient evidence
and were not against the weight of the evidence. The State did present legally insufficient
evidence to support a specification for having a suspended driver’s license. As for
Whitfield’s evidentiary challenges, the record demonstrates harmless error. We also see
no cumulative error depriving him of a fair trial.
{¶ 4} The trial court’s judgment will be reversed insofar as it entered a judgment of
conviction and sentenced Whitfield on two counts of vehicular assault as third-degree
felonies, rather than fourth-degree felonies; the matter will be remanded for resentencing
on those counts. In all other respects, the trial court’s judgment will be affirmed.
I. Background
{¶ 5} The present appeal stems from a high-speed police pursuit of a stolen vehicle
that ended in a fatal accident. The primary issue at trial involved the identity of the driver
when the accident occurred.
{¶ 6} The stolen vehicle, a black Ford truck with darkly-tinted windows, was taken
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from a Sunoco gas station on June 23, 2020, when the owner left the engine running
while he went inside to make a purchase. Two days later, a detective saw the truck when
on patrol. The detective followed it and waited for additional patrol cars to respond. At
one point, officers boxed in the truck and ordered its occupants to exit the vehicle. The
driver of the truck responded by backing up, hitting a police cruiser, and fleeing on North
Dixie Drive. A high-speed chase ensued, reaching speeds of nearly 100 miles per hour.
While attempting a turn, the truck rolled and crashed into a vacant house, coming to a
stop upside down.
{¶ 7} Officers saw Whitfield exit an open driver’s side door and run from the crash
site. Two other occupants of the truck, Jelani Shackelford and Joseph Hespeth, were
seen crawling through the broken rear window. A fourth occupant, Rodnesha Thompson,
was found hanging upside down in the passenger seat secured by a seat belt. Whitfield
ignored orders to stop running and was taken into custody after a detective deployed a
Taser. All four occupants of the truck were transported to the hospital. Shackelford and
Hespeth were diagnosed with serious injuries, including multiple broken bones.
Thompson died from her injuries while at the hospital. Whitfield, the least injured of the
occupants, left the hospital of his own accord and against medical advice.
{¶ 8} At trial, a sergeant with the Montgomery County Sheriff’s office testified that
he had overheard Whitfield admit to hospital staff that he had been driving the truck.
Immediately after the accident, Shackelford and Hespeth were uncooperative and did not
answer investigators’ questions. Police subsequently lost contact with them, and they
could not be located prior to Whitfield’s trial. A forensic scientist with the Miami Valley
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Regional Crime Laboratory testified that at least three DNA profiles were found on the
truck’s steering wheel. Whitfield could not be excluded as the source of one of the profiles.
According to the forensic scientist, one in every 415 African American individuals could
be part of the profile from which Whitfield, an African American, could not be excluded.
{¶ 9} Whitfield testified in his own defense. He stated that Hespeth had been
driving the truck, Thompson was in the front passenger’s seat, he was in the driver’s-side
rear seat, and Shackelford was in the passenger’s-side rear seat. According to Whitfield,
Hespeth was taking him to sell some marijuana, which he had with him in a fanny pack.
Whitfield did not remember making any statements to hospital staff about being the driver
of the truck.
{¶ 10} Based on the evidence presented, a jury found Whitfield guilty of
aggravated vehicular homicide, two counts of vehicular assault, failure to comply with the
order or signal of a police officer, and resisting arrest. With regard to a specification
accompanying the aggravated vehicular homicide and vehicular assault charges, the jury
also found that Whitfield had been driving without a valid driver’s license at the time of the
accident.
{¶ 11} The trial court made statutory findings for consecutive sentences and
imposed an aggregate prison term of 17 to 21 years. It also imposed a lifetime driver’s
license suspension on the most serious charges.
II. Analysis
{¶ 12} Whitfield advances the following five assignments of error:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING
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APPELLANT’S MOTION TO DISMISS ON THE BASIS OF SPEEDY TRIAL
GROUNDS.
II. APPELLANT’S CONVICTIONS ARE NOT SUPPORTED BY
SUFFICIENT EVIDENCE TO PROVE GUILT BEYOND A REASONABLE
DOUBT AND ARE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT BY PERMITTING THE STATE TO ATTACK HIS
CREDIBILITY WITH A JUVENILE ADJUDICATION.
IV. THE TRIAL COURT DENIED APPELLANT’S CONSTITUTIONAL
RIGHT TO PRESENT A DEFENSE BY EXCLUDING RELEVANT
EVIDENCE.
V. THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH HEREIN
DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR
TRIAL.
A. Speedy Trial
{¶ 13} In his first assignment of error, Whitfield raises a statutory speedy-trial
issue. He argues that no tolling event or other reasonable and necessary continuance
extended the speedy-trial deadline. Given that his trial occurred beyond that 90-day
deadline, Whitfield reasons that he was entitled to dismissal of the indictment.
{¶ 14} The right to a speedy trial is guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Section 10, Article I of the Ohio
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Constitution. This constitutional mandate has been codified in R.C. 2945.71, which
designates specific time limits for bringing a defendant to trial. As relevant here, a
defendant charged with a felony must be brought to trial within 270 days of arrest. R.C.
2945.71(C)(2). Each day that a defendant is held in jail in lieu of bail counts as three days
when computing this time. R.C. 2945.71(E). This means a defendant held in jail must be
brought to trial within 90 days of arrest.
{¶ 15} Speedy-trial time may be tolled by certain events delineated in R.C.
2945.72. Compliance with the speedy-trial statutes is mandatory, and they “must be
strictly construed against the state.” State v. Cox, 12th Dist. Clermont No. CA2008-03-
028, 2009-Ohio-928, ¶ 12. “The rationale supporting speedy-trial legislation is to prevent
inexcusable delays caused by indolence within the judicial system.” State v. Sanchez,
110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 8. “Review of a speedy-trial
claim involves a mixed question of law and fact. Therefore, we defer to the trial court’s
factual findings if they are supported by competent, credible evidence, but we review the
application of the law to those facts de novo.” State v. Long, 163 Ohio St.3d 179, 2020-
Ohio-5363, 168 N.E.3d 1163, ¶ 15.
{¶ 16} In the present case, Whitfield was held in jail upon his arrest. He did not
waive his right to a speedy trial. Therefore, he was required to be brought to trial within
90 days unless one or more sufficient tolling events occurred. Whitfield’s speedy-trial
clock began on August 19, 2021, when he was arrested on his indictment. His trial
commenced on February 22, 2022, which was beyond the 90-day time limit.
{¶ 17} Whitfield acknowledges that he requested a seven-day continuance of
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proceedings from September 8, 2021, to September 15, 2021. Speedy-trial time was
tolled for those seven days pursuant to R.C. 2945.72(H), which extends time for “[t]he
period of any continuance granted on the accused’s own motion.” Whitfield also filed a
request for discovery, which tolled speedy-trial time for a “reasonable” period. State v.
Belville, Ohio Slip Opinion No. 2022-Ohio-3879, __ N.E.3d __, ¶ 19-20. But the parties’
real dispute concerns the trial court’s setting of an initial trial date outside of speedy-trial
time and its subsequent rescheduling of that trial date after appointing new counsel to
represent Whitfield.
{¶ 18} On September 16, 2021, the trial court held a hearing to discuss a trial date.
During the hearing, the trial court explained that it was “impossible” to set a trial date for
Whitfield any earlier than December 20, 2021. While acknowledging that this date was
beyond the statutory speedy-trial deadline, the trial court noted that R.C. 2945.72(H)
authorized tolling speedy-trial time for any “reasonable continuance” ordered by the trial
court sua sponte. The trial court then noted the existence of a “tremendous backlog” of
pending trials due to a prior COVID-19-related suspension of jury trials in Montgomery
County. The trial court stated that it sometimes still had four or five jury trials scheduled
for the same week and that it had approached other judges about taking Whitfield’s case.
The trial court advised Whitfield that all of the judges’ dockets were full and that it simply
could not set his trial date earlier than December 20, 2021. As a result, the trial court
found a continuance of his trial until that date to be reasonable under R.C. 2945.72(H).
The trial court memorialized its determination in an entry and order filed that same day.
{¶ 19} Thereafter, on October 8, 2021, Whitfield’s attorney filed a motion to
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withdraw as counsel, citing “an irreconcilable breakdown in communication between client
and attorney.” The trial court held an October 13, 2021 hearing on the motion and granted
defense counsel permission to withdraw. During the hearing, the trial court advised
Whitfield that it would appoint new counsel to represent him. The trial court then added,
“I’m going to vacate the jury trial, because there’s no way new counsel can be prepared
within that period of time.” The trial court journalized an entry appointing new counsel for
Whitfield on October 14, 2021. One of the parties also sought and obtained a continuance
from October 13, 2021 until October 20, 2021, but the record fails to make clear which
party made the request. Whitfield’s newly-appointed counsel subsequently sought and
obtained another continuance from October 20, 2021 until October 27, 2021.
{¶ 20} The trial court held a scheduling conference on October 27, 2021. During
that hearing, it advised Whitfield’s new attorney that his appointment had caused the
December 20, 2021 trial date to be continued. The trial court, the prosecutor, and defense
counsel then agreed that February 22, 2022 was the next available date that would fit
everyone’s schedule. Defense counsel nevertheless objected to the new date to preserve
a potential speedy-trial argument. The trial court responded by stating:
Well, I explained to Mr. Whitfield upon his request for a new attorney
that the jury trial would have to be set aside. I explained that to him. And I
explained to him that you needed time to get up to speed. And due to the
Court’s calendar, it may be several months before we would set the retrial.
That was all explained to him before the Court granted the motion to appoint
new counsel.
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So that will be the trial date set in this matter * * *.
Transcript Vol. I at 17.
{¶ 21} The next meaningful docket entry was an “Order of Appearance” filed on
October 29, 2021. The order set a final pretrial date of February 16, 2022, and a new trial
date of February 22, 2022.
{¶ 22} On February 9, 2022, Whitfield moved to dismiss his indictment on statutory
speedy-trial grounds. His entire substantive argument was as follows:
In this case, the Defendant’s right to a speedy trial has clearly been
violated. Prior to the Defendant’s speedy trial deadline expiring, the Court
sua sponte continued his trial date to December 20th, or for 95 days. The
Court’s basis for the continuance was that it had cases set prior to the
Defendant’s speedy trial deadline that prevented it from bringing the
Defendant to trial before the deadline. However, the Court did not
specifically cite any of the cases that were set within that time frame. In
addition, it is well known that many cases set for trial are settled before trial
or continued. The Court did not leave open the possibility that this could
occur and allow the Court to timely bring the Defendant to trial. The Court
also had the option of waiting until the Defendant’s speedy trial deadline
approached so that it could try and schedule the Defendant for trial prior to
the deadline. Simply continuing the Defendant’s case for 95 days, or 32
days past his speedy trial deadline, was unreasonable.
In addition, assuming arguendo that the Trial Court’s continuance to
December 20th was reasonable, it only extended the Defendant’s right to a
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speedy trial by 32 days. The Trial Court did not set the Defendant’s trial
within those remaining 32 days. As of the date February 8, 2022, 50 days
have elapsed since December 20th and, therefore, the Defendant’s right to
a speedy trial has been violated.
Defendant’s February 9, 2022 Motion to Dismiss at 3.
{¶ 23} The trial court overruled Whitfield’s motion to dismiss in a February 18, 2022
decision. Reiterating its earlier explanation about ongoing coronavirus-related docket
congestion and a subsequent continuance necessitated by Whitfield’s request for new
counsel, the trial court found no speedy-trial violation.
{¶ 24} On appeal, Whitfield primarily challenges the trial court’s setting of a
December 20, 2021 trial date based on docket constraints. He asserts that the
suspension of jury trials in Montgomery County Common Pleas Court was lifted in
December 2020 and argues that COVID-19 “cannot remain a basis for denial of statutory
speedy trial rights well after the pandemic.” With regard to the subsequent continuance
related to Whitfield’s request for new counsel, he does not challenge or even address the
merits of the trial court’s decision to order a continuance to allow new counsel to become
acquainted with the case. Whitfield argues only that the trial court failed to journalize an
entry containing reasons justifying this continuance.
{¶ 25} Upon review, we find Whitfield’s speedy-trial challenge to be unpersuasive.
With regard to the initial December 20, 2021 trial date, the trial court made a detailed
record explaining why it was impossible for Whitfield to be tried within the speedy-trial
deadline and why a short continuance beyond that deadline was necessary. In addition
to explaining itself on the record during a hearing, the trial court incorporated its reasoning
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into a timely journal entry.
{¶ 26} Addressing a similar situation, this court recently upheld a trial court’s sua
sponte tolling of speedy-trial time based on docket congestion attributed to the lingering
impact of the coronavirus pandemic on jury trials. In State v. Hart, 2d Dist. Montgomery
No. 29252, 2022-Ohio-4550, the trial court tolled a defendant’s speedy-trial time from
October 21, 2020 until January 19, 2021, citing docket congestion and the recent
appointment of new counsel to represent the defendant. Id. at ¶ 85. Thereafter, the trial
court filed another tolling entry on January 12, 2021, tolling speedy-trial time until June
28, 2021. In support, the trial court cited a new temporary emergency order suspending
jury trials in Montgomery County Common Pleas Court through March 27, 2021, as well
as an Ohio Attorney General’s opinion and Ohio Supreme Court guidance limiting in-
person meetings, and the fact that Montgomery County remained under a level three
COVID-19 public emergency. Id. at ¶ 86. In finding no speedy-trial violation, we held that
the trial court had fully explained and justified these continuances. Other Ohio courts also
have recognized the reasonableness of coronavirus-related tolling due to docket
congestion even after Ohio’s declaration of emergency officially expired on June 30,
2020. State v. Beal, 2021-Ohio-3812, 179 N.E.3d 754, ¶ 35 (5th Dist.); see also State v.
Hairston, 2d Dist. Montgomery No. 20844, 2006-Ohio-2669, ¶ 15 (“It is well settled that
docket congestion may be grounds for a reasonable continuance under R.C. §
2945.72(H), provided that the trial court gives a timely explanation for its action.”).
{¶ 27} Here the trial court timely set forth detailed justifications for establishing a
trial date roughly a month beyond the speedy-trial deadline. Its reasons included the
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impossibility of trying Whitfield sooner due to a crowded docket based on real challenges
facing the judicial system in the wake of the global pandemic. Because the trial court’s
tolling of speedy-trial time to accommodate a December 20, 2021 trial date was
reasonable in both purpose and length, we find no statutory speedy-trial violation based
upon it.
{¶ 28} With regard to the subsequent continuance until February 22, 2022,
Whitfield’s only argument on appeal is that the trial court failed to journalize an entry
reciting its justification for the continuance. This argument fails for at least two reasons.
First, Whitfield did not raise it below in his speedy-trial motion. Nowhere in his motion did
he argue that dismissal on speedy-trial grounds was required because the trial court failed
to journalize an entry explaining the basis for establishing a February 22, 2022 trial date.
Second, a trial court is required to journalize such an entry only when it sua sponte
continues a trial date. In such a case, it must issue a journal entry ordering the
continuance and setting forth its reasoning prior to expiration of speedy-trial time. State
v. King, 70 Ohio St.3d 158, 162-163, 637 N.E.2d 903 (1994).
{¶ 29} Here the trial court set forth its justification for continuing Whitfield’s trial
date to February 22, 2022 during a hearing, not in a journal entry, and it separately
journalized the new-trial date. Nothing more was required, however, because the trial
court found a delay until February 22, 2022 to be necessitated by Whitfield’s motion for
new counsel. That tolling event was attributable to Whitfield’s own actions and was not a
sua sponte act by the trial court. See Belville, Ohio Slip Opinion No. 2022-Ohio-3879, __
N.E.3d __, at ¶ 30 (recognizing that “King dealt with the requirement that when a trial
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court sua sponte continues a trial date beyond the speedy-trial period, it must issue a
journal entry setting forth the continuance and the reason therefor prior to the expiration
of the speedy-trial period”). Any period of delay necessitated by a defendant’s own motion
automatically acts as a tolling event. Id. at ¶ 31.
{¶ 30} For the foregoing reasons, we see no error in the trial court’s overruling of
Whitfield’s motion to dismiss the charges against him on statutory speedy-trial grounds.
The first assignment of error is overruled.
B. Legal Sufficiency and Manifest Weight of Evidence
{¶ 31} In his second assignment of error, Whitfield challenges the legal sufficiency
and manifest weight of the evidence to sustain his convictions. In particular, he contends
the State failed to prove that he was driving the stolen truck at the time of the accident.
He also claims the evidence did not support a finding that he had a suspended license.
{¶ 32} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 33} Our analysis is different when reviewing a manifest-weight argument. When
a conviction is challenged on appeal as being against the weight of the evidence, an
appellate court must review the entire record, weigh the evidence and all reasonable
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inferences, consider witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be
reversed as being against the manifest weight of the evidence “only in the exceptional
case in which the evidence weighs heavily against the conviction.” State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 34} With the foregoing standards in mind, we reject Whitfield’s legal-sufficiency
and manifest-weight arguments predicated on the State’s failing to prove he was driving
the truck. Joseph Solomon, a sergeant with the Montgomery County Sheriff’s office,
testified that he heard Whitfield admit to hospital personnel that he was driving the truck.
This testimony alone, if believed, was legally sufficient to support a finding that he was
the driver. But the State presented additional evidence supporting an inference that
Whitfield was the driver. Following the accident, Whitfield was seen exiting the driver’s
door of the overturned vehicle, Hespeth and Shackelford were seen crawling out the
broken back window, and Thompson was found in the front passenger’s seat. In addition,
Whitfield could not be excluded as the source of a DNA profile found on the truck’s
steering wheel, and only one in every 415 African American’s could be a source of the
profile. Finally, the driver’s area of the truck sustained the least damage, and Whitfield
unquestionably suffered by far the least serious injuries of the four occupants.
{¶ 35} In light of the foregoing evidence, we believe a rational trier of fact could
have found that Whitfield was driving the truck at the time of the accident. We also are
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unpersuaded that the jury clearly lost its way and created a manifest miscarriage of
justice. This is not an exceptional case in which the evidence weighed heavily against the
convictions predicated on Whitfield’s being the driver of the truck.
{¶ 36} As noted above, however, Whitfield also challenges the legal sufficiency
and manifest weight of the evidence to support a specification accompanying his two
vehicular-assault convictions. The specification, which is found in R.C. 2903.08(C)(2),
elevates vehicular assault from a fourth-degree felony to a third-degree felony if “at the
time of the offense, the offender was driving under a suspension imposed under Chapter
4510 or any other provision of the Revised Code.” A “suspension” is defined as the
permanent or temporary withdrawal of a driver’s license or the privilege to obtain a
license. R.C. 4510.01(H).
{¶ 37} Here the parties stipulated that Whitfield “did not have a valid driver’s
license.” In fact, the record reflects that he never has had a driver’s license. But the State
presented no evidence whatsoever that Whitfield was driving under a license
“suspension” at the time of the accident. He simply was driving without a license, which
is insufficient to support the specification under R.C. 2903.08(C)(2).1 We note too that
the jury’s verdict forms for the vehicular-assault charges included a finding that Whitfield
was driving without a license, not that he was driving under a suspension. This finding
1 The vehicular-assault specification under R.C. 2903.08(C)(2) differs from the
aggravated-vehicular-homicide specification under R.C. 2903.06(B)(2)(b)(i), which
applies if the offender was driving under suspension or was driving without a valid driver’s
license. The fact that the aggravated-vehicular-homicide specification covers both driving
under suspension and driving without a license whereas the vehicular-assault
specification covers only driving under suspension makes clear that the legislature
intended to distinguish the two situations.
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was insufficient to enhance the offense-level of the two vehicular-assault convictions.
{¶ 38} For the foregoing reasons, we agree with Whitfield that the specification
accompanying his vehicular-assault convictions was based on legally insufficient
evidence and was against the weight of the evidence. The two third-degree-felony
vehicular-assault convictions will be reversed, and the case will be remanded for the trial
court to impose those convictions as fourth-degree felonies and to resentence Whitfield
accordingly.
{¶ 39} The second assignment of error is sustained in part and overruled in part.
C. Admission of Juvenile Adjudication
{¶ 40} In his third assignment of error, Whitfield contends the trial court erred in
allowing the State to use a juvenile adjudication to challenge his credibility. This argument
concerns the disclosure of a prior burglary offense committed when Whitfield was a minor.
{¶ 41} On cross-examination, Whitfield volunteered that he “had been in and out”
of juvenile detention and for that reason had not seen Jelani Shackelford very often. The
prosecutor then inquired whether Whitfield had a prior felony for burglary. Defense
counsel objected just as Whitfield simultaneously responded that the burglary had
occurred when he was 14 years old. The trial court held a sidebar at which the prosecutor
argued that it could cross-examine about the burglary because it was a “crime of
dishonesty.” The trial court agreed, ruling that the prosecutor could establish Whitfield’s
admission to burglary as a juvenile without getting into the facts of the offense. Therefore,
the trial court allowed Whitfield’s affirmative response to stand. The prosecutor then
moved on, eliciting an admission from Whitfield that he had “other felonies” on his record
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as an adult. The trial court subsequently instructed the jury that it could consider
Whitfield’s prior offenses only to test his credibility and to determine the weight to be given
to his testimony.
{¶ 42} On appeal, Whitfield contends Evid.R. 609(D) and R.C. 2951.357(H)
collectively prohibit evidence of a juvenile adjudication to be used for impeachment
purposes. For its part, the State concedes that the admission of testimony about his
burglary adjudication was error. 2 Nevertheless, the State contends Whitfield did not
specifically object to cross-examination on the basis that the burglary involved an
inadmissible juvenile adjudication. The State claims the sidebar addressed whether
burglary was a crime of dishonesty, not whether a juvenile adjudication was admissible
to impeach Whitfield. Therefore, the State maintains that we are limited to reviewing for
plain-error. Alternatively, the State suggests that the admission of testimony about
Whitfield’s burglary offense was invited error.
{¶ 43} Upon review, we agree that the trial court’s admission of testimony about
the burglary adjudication for general impeachment purposes was erroneous. Under
Evid.R. 609(A)(3), evidence of conviction of a crime of dishonesty generally is admissible
to attack the credibility of a witness. Offenses committed by a minor, however, specifically
are addressed by Evid.R. 609(D), which provides that “[e]vidence of juvenile adjudications
is not admissible except as provided by statute enacted by the General Assembly.” The
pertinent statute, R.C. 2151.357(H), provides that evidence of a juvenile adjudication “is
not admissible to impeach the credibility of the child in any action or proceeding.” Thus,
2 See Appellee’s Brief at 16 (“Even though the testimony about Whitfield’s juvenile
conviction was error, it did not rise to the level of plain error and did not prejudice him.”).
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this court has recognized that the evidence rules and Revised Code “prohibit the use of
a juvenile adjudication for purposes of general impeachment of a witness’s credibility.”
State v. Demoss, 2d Dist. Champaign No. 2001-CA-5, 2002 WL 360581, *4 (March 8,
2002); see also State v. Goodwin, 7th Dist. Mahoning No. 99 CA 220, 2001 WL 1740065,
*4 (Sept. 24, 2001) (“Where the submission of the juvenile adjudication is done merely to
disclose that the adjudication exists in order to denigrate the former offender’s general
credibility, the juvenile adjudication is inadmissible.”); State v. Taylor, 12th District Fayette
No. 2018-11-021, 2019-Ohio-3437, ¶ 33 (“[D]efense counsel sought admission of
Watkins’ adjudication to show that Watkins was lying, that is, solely to impeach his
credibility, which is the exact purpose for which such evidence is inadmissible under R.C.
2151.357(H) and Evid.R. 609(D).”).
{¶ 44} The more difficult issue involves determining the proper standard of review.
Contrary to the State’s argument, the invited-error rule does not apply. The prosecutor
improperly questioned Whitfield about having a prior felony for burglary. The question
itself was improper because the burglary involved a juvenile adjudication when Whitfield
was 14 years old. Defense counsel objected just as Whitfield started to answer the
question. Under these circumstances, we fail to see how Whitfield “invited” the trial court’s
erroneous evidentiary ruling.
{¶ 45} The State also asserts that plain-error review applies because defense
counsel did not object on the grounds that a juvenile adjudication is inadmissible.
According to the State, defense counsel argued only that burglary was not a crime of
dishonesty. The complete nature of defense counsel’s objection is impossible to
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determine, however, because seemingly-relevant portions of counsel’s remarks during
the sidebar have been transcribed as “(indiscernible).” Defense counsel does appear to
have questioned whether burglary is a crime of dishonesty, which it is. See State v. Lamp,
7th Dist. Columbiana No. 20 CO 0001, 2021-Ohio-2354, ¶ 63.
{¶ 46} But even if we assume that defense counsel also objected to the admission
of Whitfield’s testimony about the burglary offense because it was a juvenile adjudication,
the trial court’s error in admitting the evidence was harmless beyond a reasonable doubt.
At trial, Whitfield himself admitted that he actively had been engaged in selling
methamphetamine and marijuana. He also acknowledged on cross-examination that his
adult record included multiple “other felonies.” In light of these admissions of criminal
activity by Whitfield, he was not prejudiced by an isolated reference to his juvenile
adjudication. Accordingly, the third assignment of error is overruled.
D. Exclusion of Evidence
{¶ 47} In his fourth assignment of error, Whitfield claims the trial court deprived
him of his constitutional right to present a defense by excluding relevant evidence. This
argument concerns his attempt to cross-examine a detective about drugs being found in
a fanny pack that appeared to have been ejected from the overturned truck.
{¶ 48} On direct examination, the detective testified that the fanny pack appeared
to have fallen out of the truck when it rolled. The detective added that the contents of the
fanny pack included identification bearing Whitfield’s name. On cross-examination,
defense counsel asked whether any illegal substances were found in the fanny pack. The
State objected, arguing that the case was not a drug case and that the presence of illegal
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substances was irrelevant. Defense counsel responded that the presence of drugs in
Whitfield’s fanny pack would rebut an inference that he fled the scene on foot because
he had been driving the truck. Defense counsel theorized that Whitfield may have fled on
foot because he knew drugs were in the fanny pack. Therefore, the presence of drugs
could negate an inference of consciousness of guilt of vehicular homicide and vehicular
assault as the reason for his running. The trial court sustained the State’s objection,
declaring the presence of drugs in the fanny pack to be “irrelevant.”
{¶ 49} “[T]he admission of evidence lies within the broad discretion of the trial
court, and a reviewing court should not disturb evidentiary decisions in the absence of an
abuse of discretion that has created material prejudice.” State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62. Here the trial court acted unreasonably, and
thereby abused its discretion, in finding evidence about the presence of drugs in the fanny
pack to be irrelevant. Whitfield’s attempted flight from the scene of the accident potentially
supported an inference of consciousness of guilt of vehicular homicide and vehicular
assault. In other words, it potentially supported an inference that he had been driving the
truck, which was the primary issue in the case. One way for Whitfield to rebut that
inference was to provide an alternative explanation for why he ran. The presence of drugs
in the fanny pack supplied that alternative explanation, enabling Whitfield to argue that
he fled on foot because of his drug possession, not because he had been driving.
Therefore, the presence of drugs in the fanny pack was relevant, and the trial court acted
unreasonably in finding otherwise.
{¶ 50} Despite the foregoing conclusion, we are convinced that Whitfield was not
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materially prejudiced by the trial court’s ruling. Although defense counsel was not
permitted to cross-examine the detective about the contents of the fanny pack, Whitfield
testified in his own defense and told the jury what was in the pack. He explained that
Hespeth was driving him to a location to sell marijuana at the time of the accident.
Whitfield testified that the marijuana had been in his fanny pack. Although cross-
examining the detective may have corroborated Whitfield’s testimony, the jury did hear
about drugs being in the fanny pack.
{¶ 51} We note too that the State’s initial closing argument did not even assert an
inference of consciousness of guilt arising from Whitfield’s attempted flight on foot. The
State only mentioned his running after the accident as evidence to support a resisting-
arrest charge. Defense counsel first raised the issue of inferences arising from Whitfield’s
attempted flight from the accident scene in his closing argument. In particular, defense
counsel suggested that Whitfield may have gotten out of the car and fled on foot because
he was in possession of marijuana. Defense counsel specifically argued that Whitfield’s
attempted flight was not proof that he had been driving the truck. In response to this
argument, the State argued in rebuttal that Whitfield ran because he had been driving the
truck and knew he was in trouble. Notably, however, the State did not dispute Whitfield’s
claim about being in possession of marijuana. In fact, the State stressed Whitfield’s
testimony admitting that he was a drug dealer. Finally, we note that the trial court’s
instructions to the jury did not include a specific instruction about inferring consciousness
of guilt from flight.
{¶ 52} Based on our review of the record, we believe Whitfield adequately
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presented his argument about running from the accident scene because he was in
possession of marijuana. We are convinced that the trial court’s evidentiary ruling
precluding cross-examination of the detective regarding the contents of the fanny pack
did not materially prejudice Whitfield’s defense. The trial court’s error in disallowing the
cross-examination was harmless beyond a reasonable doubt. Accordingly, the fourth
assignment of error is overruled.
E. Cumulative Error
{¶ 53} In his fifth assignment of error, Whitfield raises a claim of cumulative error.
He contends the errors alleged above, when considered in combination, deprived him of
a fair trial.
{¶ 54} It is true that separately harmless errors can violate a defendant’s right to a
fair trial when they are aggregated. State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d
52 (2000). To find cumulative error, we first must find multiple errors committed at trial.
Id. at 398. We then must find a reasonable probability that the outcome below would have
been different but for the combination of separately harmless errors. State v. Thomas, 2d
Dist. Clark No. 2000-CA-43, 2001 WL 1103328, *9 (Sept. 21, 2001).
{¶ 55} In our analysis above, we found that the trial court erroneously applied a
specification for driving with a suspended license. That discreet error affects the felony
level of Whitfield’s two vehicular-assault convictions. We fail to see, however, how that
error could have impacted any other aspect of his trial.
{¶ 56} The only other errors we found above concerned the trial court’s allowing
the introduction of evidence about Whitfield’s prior juvenile adjudication and disallowing
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cross-examination of a detective about the contents of the fanny pack. Even when
considered in the aggregate, we are unpersuaded that these two evidentiary rulings
deprived Whitfield of a fair trial. Accordingly, his fifth assignment of error is overruled.
III. Conclusion
{¶ 57} Having sustained Whitfield’s second assignment of error in part, we reverse
the trial court’s judgment insofar as it entered a judgment of conviction and sentenced
Whitfield on two counts of vehicular assault as third-degree felonies. Those convictions
are reversed, and the case is remanded to the trial court for resentencing on those counts
as fourth-degree felonies. In all other respects, the trial court’s judgment is affirmed.
.............
WELBAUM, P.J. and LEWIS, J., concur.