State v. Debord

2023 Ohio 4204

• Court: Ohio Court of Appeals
• Decided: November 22, 2023
• Docket: 29709
• Status: Published

Opinion

[Cite as State v. Debord, 2023-Ohio-4204.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29709 : v. : Trial Court Case No. 2022 CR 00888 : CHRISTOPHER DEBORD : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on November 22, 2023

PAMELA L. PINCHOT, Attorney for Appellant

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

.............

WELBAUM, P.J.

{¶ 1} Appellant, Christopher Debord, appeals from his convictions for aggravated

murder, aggravated robbery, aggravated burglary, grand theft of a motor vehicle,

tampering with evidence, and having weapons while under disability following a jury trial

and a bench trial in the Montgomery County Court of Common Pleas. In support of his

appeal, Debord claims that all of his convictions were against the manifest weight of the -2-

evidence. Debord also claims that the trial court erred by allowing the State to impeach

one of its own trial witnesses using a prior inconsistent statement and by allowing certain

photographs of the deceased victim to be admitted into evidence. In addition, Debord

claims that his trial counsel was ineffective for failing to object or properly object to those

evidentiary errors. Debord further asserts that the trial court erred by failing to suppress

statements he had made during a police interview and claims that the cumulative effect

of that error and the aforementioned evidentiary errors warrants a reversal of his

conviction. Lastly, Debord claims that the indefinite sentencing scheme applied by the

trial court during his sentencing is unconstitutional. For the reasons outlined below,

Debord’s judgment of conviction will be affirmed.

Facts and Course of Proceedings

{¶ 2} On May 2, 2022, a Montgomery County grand jury returned a 17-count

indictment charging Debord with four counts of aggravated murder, two counts of

aggravated robbery, two counts of aggravated burglary, two counts of felony murder, two

counts of felonious assault, one count of grand theft of a motor vehicle, three counts of

tampering with evidence, and one count of having weapons while under disability. The

counts for aggravated murder, aggravated robbery, aggravated burglary, felony murder,

and felonious assault included three-year firearm specifications. The indicted counts

were broken down as follows.

• Aggravated Murder: 4 counts - unclassified felony

1. R.C. 2903.01(B) (aggravated robbery/deadly weapon) -3-

2. R.C. 2903.01(B) (aggravated robbery/serious physical harm)

3. R.C. 2903.01(B) (aggravated burglary/ physical harm)

4. R.C. 2903.01(B) (aggravated burglary/deadly weapon)

• Aggravated Robbery: 2 counts - first-degree felony

1. R.C. 2911.01(A)(1) (deadly weapon)

2. R.C. 2911.01(A)(3) (serious physical harm)

• Aggravated Burglary: 2 counts - first-degree felony

1. R.C. 2911.11(A)(1) (physical harm)

2. R.C. 2911.11(A)(2) (deadly weapon)

• Felony Murder: 2 counts - unclassified felony

1. R.C. 2903.02(B) (felonious assault/serious physical harm)

2. R.C. 2903.02(B) (felonious assault/deadly weapon)

• Felonious Assault: 2 counts - second-degree felony

1. R.C. 2903.11(A)(1) (serious physical harm)

2. R.C. 2903.11(A)(2) (deadly weapon)

• Grand Theft: 1 count - fourth-degree felony

1. R.C. 2913.02(A)(1) (motor vehicle)

• Tampering with Evidence: 3 counts - third-degree felony

1. R.C. 2921.12(A)(1) (alter/destroy cell phone) -4-

2. R.C. 2921.12(A)(1) (alter/destroy shell casings)

3. R.C. 2921.12(A)(1) (alter/destroy Honda CRV)

• Having Weapons While Under Disability: 1 count - third-degree felony

1. R.C. 2923.13(A)(3) (prior felony drug conviction)

{¶ 3} The charges stemmed from allegations that on February 13, 2022, Debord

shot and killed his friend, Joshua Shortt, while inside Shortt’s Germantown residence. It

was also alleged that Debord stole items of property from Shortt, including Shortt’s

vehicle, and that Debord tampered with evidence, i.e., Shortt’s cell phone, the shell

casings from the shooting, and Shortt’s vehicle.

{¶ 4} Following his indictment, Debord pled not guilty to all the charges and

specifications and thereafter filed a motion to suppress. In the motion to suppress,

Debord argued for the suppression of statements that he made during an interview with

Sergeant Nathan Wale of the Germantown Police Department and Detective Gregory

Stout of the Tactical Crime Suppression Unit.1 Debord claimed that his statements to

those officers should be suppressed because he did not knowingly, intelligently, and

voluntarily waive his Miranda rights during the interview. Debord also claimed that his

statements were coerced by Sgt. Wale and Det. Stout’s making false promises of leniency

in exchange for his providing information about Shortt’s murder.

{¶ 5} After holding a suppression hearing and reviewing Debord’s video-recorded

1 The Tactical Crime Suppression Unit (“TCSU”) is an investigative unit that assists law

enforcement agencies in eight cities within Montgomery County, Ohio. Germantown is one of the eight cities that the TCSU assists when additional investigating officers are needed. -5-

police interview, the trial court overruled Debord’s motion to suppress. Debord’s case

proceeded to a four-day jury trial. All the indicted counts and specifications were tried to

the jury except for the count of having weapons while under disability, which was tried to

the bench. The following is a summary of the testimony and evidence that was

presented at Debord’s jury trial.

Shortt’s Last Communication and the Discovery of Shortt’s Body

{¶ 6} On Sunday, February 13, 2022, Shortt’s mother text-messaged 29-year-old

Shortt to ask if he was going to watch the Bengals play in the Super Bowl that evening.

Shortt sent his mother a text message back saying that he was going to invite his friend

“Stretch” over to his house to watch the game. Shortt’s mother then offered to purchase

Shortt and his friend some chicken wings and nachos for delivery to Shortt’s house. In

response, Shortt told his mother that he would let her know in 30 minutes when to order

the food. However, Shortt never contacted his mother.

{¶ 7} The next day, Shortt’s mother sent Shortt a text message wishing him a

happy Valentine’s Day and asking if he was okay. Shortt’s mother again received no

response from Shortt. The lack of response worried Shortt’s mother, so she decided to

drive to Shortt’s Germantown residence the next morning, February 15, 2022. When

she arrived at Shortt’s residence, Shortt’s mother noticed that her son’s red Honda CRV

was not in the driveway. She thereafter used her set of keys to get into Shortt’s house,

which was locked and secure.

{¶ 8} Once inside the house, Shortt’s mother fed Shortt’s cat and looked around. -6-

On the second floor of the house, Shortt’s mother saw a silver box containing tattoo

supplies and some clothes that she did not recognize as belonging to Shortt. As she

was getting ready to leave the house, she glanced down into the basement and noticed

a twin mattress turned upside down on the basement floor. She went down into the

basement and saw a black quilt spread out on the floor with something underneath it.

Thinking it was dirty clothes, Shortt’s mother lifted a corner of the quilt and saw her son

with dried blood on his face and his head in a pool of blood. She immediately called

Shortt’s father and then 9-1-1.

Investigation at Shortt’s Germantown Residence and Clark Gas Station

{¶ 9} After Shortt’s mother discovered her son’s body, the police investigated and

collected evidence at Shortt’s residence. During that investigation, the officers

discovered three bullet holes in the basement wall near Shortt’s body and a nine-

millimeter shell casing underneath Shortt’s body. In Shortt’s backyard, the police

discovered an Amazon box with small holes that were consistent with the size of BB gun

pellets. The police also discovered packaging material for a BB gun in a trash can

outside of Shortt’s residence and a manual to a BB gun in Shortt’s bedroom closet.

{¶ 10} In addition to that evidence, the police discovered that some of Shortt’s

possessions, including his cell phone and red Honda CRV, were missing from the

residence. In response, the Montgomery County Regional Dispatch Center issued a

dispatch for all law enforcement agencies in the area to be on the lookout for Shortt’s

vehicle. Later that night, a Dayton police officer located Shortt’s vehicle at a Clark gas -7-

station. The police officer saw two males, later identified as Debord and Dustin Cooper,

exit Shortt’s vehicle and enter the gas station. The officer was able to apprehend Cooper

in the gas station, but Debord left the scene in a black Chevrolet Equinox driven by

Debord’s friend, John Wilson.

John Wilson

{¶ 11} The police eventually tracked down and interviewed Wilson regarding his

interactions with Debord, who Wilson knew as “Stretch.” During his video-recorded

interview, Wilson told the police that, the day before the February 15th gas station

incident, Debord had come over to his house and told him that he (Debord) had robbed

and shot someone. Video evidence from the Clark gas station and Wilson’s trial

testimony confirmed that on February 15th, Wilson followed the red Honda CRV

containing Debord and Cooper to the Clark gas station while driving a black Chevrolet

Equinox. State’s Ex. No. 180. Wilson testified that he and Debord left the gas station

in the Equinox after Cooper got arrested and then abandoned the Equinox around the

corner. Wilson testified that Debord’s friend, Crista Sawvell, thereafter picked them up

and took them to her residence.

Crista Sawvell

{¶ 12} Sawvell testified at trial and confirmed that she had picked up Debord and

Wilson on the night of February 15, 2022, and taken them to her residence on Blackwood

Avenue. Sawvell testified that Debord, who she also knew as “Stretch,” kept most of his -8-

belongings at her residence. Sawvell estimated that Debord spent the night at her

residence at least one or two days a week. Sawvell described her residence as a “safe

place” for Debord and explained that it was a place where she “wasn’t going to let anything

happen to his stuff * * *[.]” Trial Tr. Vol. III, p. 270.

{¶ 13} Sawvell testified that on the night of the Super Bowl, February 13, 2022,

Debord came to her residence at a late hour after she had been drinking. Sawvell

claimed that she went to sleep after Debord arrived and did not have much interaction

with him. Sawvell testified that when she woke up the next morning, Debord was gone,

but that he returned later that afternoon with Dustin Cooper. Sawvell recalled that when

Debord returned he was carrying several bags of clothes from the mall.

{¶ 14} The next day, February 15th, Sawvell observed that Debord and Cooper

had parked a red vehicle behind her truck as she was getting ready to leave her residence

for a job interview. Sawvell testified that, when she returned from the interview, the red

vehicle was gone and there was a bunch of trash, battery cables, and a GPS navigation

system left outside. Sawvell testified that Debord contacted her later that night and told

her that he and Cooper had been pulled over by the police because the red vehicle they

were driving was stolen. Sawvell testified that Debord asked her to come get him and

their mutual friend, Wilson. Sawvell testified that she picked up Debord and Wilson at a

nearby soap factory and took them back to her residence.

{¶ 15} Continuing, Sawvell testified that she had a motion-activated Arlo security

camera installed on the front door of her residence. During trial, Sawvell identified video

footage from her security camera taken on February 15, 2022, that showed Shortt’s red -9-

Honda CRV parked in her driveway and Debord, Cooper, and Wilson coming and going

from her residence. State’s Ex. No. 243(A). Sawvell testified that there had been more

video footage of the red Honda CRV on her security camera, but that she had deleted it

at Debord’s request. Sawvell specifically testified that she had deleted video footage

showing Debord cleaning out the red Honda CRV.

{¶ 16} Sawvell testified that in the weeks leading up to Super Bowl Sunday, she

had seen Debord with a black and silver firearm that had a “weird button” on it. Trial Tr.

Vol. III, p. 291. Sawvell specifically remembered Debord having the firearm in his

possession at her friend Jessica’s birthday party the weekend before the Super Bowl.

Sawvell testified that during the birthday party, she, Jessica, and Debord had posed with

the gun and taken pictures. Sawvell also testified that Debord had been frantic after

Cooper was arrested and that his story about what happened did not make much sense.

Sawvell recalled Debord telling her that he had heard shots and then ran and jumped in

a car, but he had never mentioned who had been shot or whether anyone was killed.

Search of Shortt’s Red Honda CRV

{¶ 17} Shortt’s Honda CRV was impounded and searched by the police after it was

located at the Clark gas station. The officer who searched the vehicle testified that,

although the exterior of the vehicle was dirty and covered with road salt, all the windows

and door handles of the vehicle had been wiped clean. The officer also testified that the

spare wheel had been removed from the rear of the vehicle. Inside the vehicle, the

officer discovered a cutting tool known as a Sawzall and an empty gas can. -10-

Investigation at Blackwood Avenue Residence

{¶ 18} On February 16, 2022, the police received a tip that Shortt’s Honda CRV

had been spotted at Sawvell’s Blackwood Avenue residence. In light of this information,

the police went to the residence and conducted a trash pull. While going through the

trash, officers found an empty bottle of Mr. Clean cleaner, an empty bottle of Clorox

bleach, an empty bottle of Fabuloso bleach alternative, and a Honda CRV spare tire

cover.

{¶ 19} Eventually, a search warrant was issued for the Blackwood Avenue

residence. During a search of the exterior of the residence, officers found lug nuts,

lighter fluid, two cans of Fix-a-Flat for patching tires, and various vehicle accessories and

parts, including a spare wheel, a GPS navigation system, and an ice scraper. Officers

also found a disaster pouch, which is commonly known as a body bag, and three nine-

millimeter shell casings.

{¶ 20} In a firepit at the residence, officers discovered the charred remains of a

Honda CRV manual and documentation from the Ohio Bureau of Motor Vehicles (“BMV”).

The BMV documentation included Shortt’s temporary driver’s license and the certificate

of registration for Shortt’s Honda CRV. In addition, the firepit contained remnants of

Shortt’s Valley View High School Diploma, birth certificate, and insurance identification

card.

{¶ 21} Inside the Blackwood residence, officers discovered shopping bags and

several receipts, one of which had Debord’s name on it. The officers also discovered a -11-

backpack containing a green Crown Royal Bag with various illegal narcotics inside. At

trial, Sawvell testified that the backpack belonged to Debord and that Debord had been

carrying it the day he was arrested. The officers also found a second backpack

containing a Social Security Administration envelope that was addressed to Debord.

Investigation at Knights Inn

{¶ 22} On February 17, 2022, the police received information that Debord had

been staying in room 160 of the Knights Inn hotel on Poe Avenue in Dayton. After a

search warrant was obtained for the hotel room, the police searched the room and

discovered a BB gun in a dresser drawer. The BB gun matched the description of a BB

gun that Shortt’s father had told the police Shortt recently purchased from Amazon. It

also matched the BB gun manual that was discovered in Shortt’s bedroom closet.

Cell Phone-Related Evidence

{¶ 23} Kevin Horan, a former agent for the Federal Bureau of Investigation’s

Cellular Analysis Survey Team, assisted in Shortt’s murder investigation by analyzing call

detail records and cell phone tower signal data related to the cell phones of Shortt,

Debord, and Cooper. Horan’s analysis revealed that on February 13, 2022, Shortt’s

phone traveled to Middletown and began tracking around the location of Debord’s phone

at 5:28 p.m. From 5:48 p.m. to 6:07 p.m. both Shortt’s and Debord’s phones traveled

from Middletown toward Shortt’s Germantown residence. From 6:14 p.m. to 8:17 p.m.

both phones were stationary in the area of Shortt’s residence. From 8:18 p.m. to 8:20 -12-

p.m., both phones began traveling northbound toward Dayton. Between 8:33 p.m. and

8:39 p.m. both phones were in the downtown Dayton area. However, at 8:39 p.m.

Shortt’s phone remained stationary while Debord’s cell phone traveled to the east side of

Dayton. Then, at 9:37 p.m., Shortt’s phone disappeared from the network, which Horan

testified meant that the phone either powered off or was destroyed.

{¶ 24} Horan testified that the data indicating that Shortt’s phone remained

stationary at 8:39 p.m. while Debord’s phone traveled to the east side of Dayton was

consistent with Shortt’s phone being ditched. Although Horan could not specifically say

where Shortt’s phone ended up, he testified that it was possible that the phone was thrown

off a bridge, since Debord would have had to cross over “rivers and bridges and things of

that nature * * * to get from the west side to the east side [of Dayton].” Trial Tr. Vol. IV,

p. 592.

{¶ 25} Horan also testified that the Germantown Police Department provided him

with certain MMS messages obtained from their search of Debord’s cell phone. Horan

explained that Debord had sent the messages to Cooper’s phone at 8:28 p.m. and 8:38

p.m. on February 13, 2022, and that the messages were screenshot images of a GPS

map showing that Debord’s phone was located on Ohio State Route 4 (“Route 4”).

Horan further testified that the logical route from Germantown to Dayton would be to go

on Route 4, and that the cell phone data he analyzed fell in line with Debord’s phone

traveling along Route 4.

{¶ 26} While searching Debord’s cell phone, the police also discovered images of

a Remington R51 nine-millimeter firearm that were taken on February 14, 2022. State’s -13-

Ex. Nos. 237(A)-(C). At trial, Sawvell identified the firearm in the images as the same

firearm that Debord had been carrying the weekend before the Super Bowl. Also, the

images showed that the firearm was sitting on the lap of an individual wearing a pair of

white, black, and gray camouflage pants—the same type of pants that Debord was

wearing in the security video evidence taken from Blackwood Avenue on February 14th.

In addition, the police discovered a screenshot image of an article headline reading:

“Investigation underway after man found dead in Germantown,” which had been captured

on Debord’s phone on February 15, 2022.

{¶ 27} While searching Cooper’s cell phone, the police found incoming messages

from a person labeled “Stretch” on February 14, 2022, that contained the same images

of the Remington R51 nine-millimeter firearm that Debord had taken on his phone.

State’s Ex. No. 238(A). The contents of Cooper’s cell phone also established that

approximately one hour after receiving those images, Cooper had sent a text message to

an unknown individual saying: “My dude got a Remington 9mm for sale if you’d be

interested in it.” Trial Tr. Vol. IV, p. 708; State’s Ex. No. 238(B). In addition, at 8:45

p.m. on the night Shortt was shot, Debord sent the mother of his child a Facebook

message saying: “Before [you go] to sleep tonight say a prayer for me ask him to keep

me safe regardless of my sins[.]” State’s Ex. No. 244; Trial Tr. Vol. IV, p. 507.

Shell Casings and Bullets

{¶ 28} Firearm examiner Patrick McLaughlin compared the single shell casing

recovered from Shortt’s basement with the three shell casings recovered at Blackwood -14-

Avenue. McLaughin testified that all four shell casings were nine-millimeter casings and

that they had all been fired from the same weapon. McLaughlin also compared three

bullets that were recovered from the basement wall at Shortt’s Germantown residence

with five bullets/bullet fragments that were recovered from Shortt’s body during his

autopsy. McLaughlin testified that two of the bullet fragments from the autopsy were

insufficient for comparison, but that the remaining six bullets were all nine-millimeter in

caliber and had all been fired from the same weapon.

Debord’s Police Interview

{¶ 29} On February 17, 2022, Debord contacted the Germantown Police

Department and offered to come to the station and speak to the police. However,

Debord did not attend the interview. Thereafter, Debord checked in with his probation

officer and was taken into custody due to several probation violations. After Debord was

taken into custody, Sgt. Wale and Det. Stout interviewed Debord on February 18, 2022.

{¶ 30} During his interview, Debord initially told the officers that he had not seen

Shortt since before Christmas 2021, and that he had learned about Shortt’s death through

Cooper. Debord also told the officers that Cooper was the person who had brought

Shortt’s Honda CRV to him. However, over the course of the interview, Debord’s story

changed. Debord went from telling the officers that he had not seen Shortt since before

Christmas 2021 to telling the officers that he had last seen Shortt on Valentines Day,

February 14, 2022. Debord told the officers that once he and Cooper had learned that

Shortt had been killed, they were worried about having possession of his vehicle. -15-

Debord claimed that they had initially decided to drop off Shortt’s vehicle somewhere after

cleaning it out with bleach and detergents, but eventually decided it was a better idea to

burn the vehicle. To carry out this plan, Debord told the officers that he and Cooper went

to purchase gasoline at the Clark gas station in Dayton where the police ended up

arresting Cooper.

{¶ 31} By the end of the interview, Debord’s story had changed yet again. Debord

eventually told the officers that he last saw Shortt on Sunday, February 13, 2022, when

Shortt picked him up and took him to Shortt’s house in Germantown to watch the Super

Bowl. During that time, Debord claimed that he and Shortt had reached an agreement

about Debord moving into one of Shortt’s upstairs bedrooms. As a result, Debord

claimed that he had left some of his clothes, a tattoo kit, and a beanie at Shortt’s house.

{¶ 32} Debord also told the officers that, on the night of the Super Bowl, he heard

Shortt get into a dispute with someone over the phone. Debord claimed that after the

dispute, he saw Shortt put marijuana and methamphetamine in a drawer upstairs.

Debord claimed that Shortt then went downstairs to meet someone while Debord stayed

upstairs. Debord claimed that while he was upstairs, he heard four or five gunshots and

a door close. Debord told the officers that, after hearing the gunshots, he went

downstairs to see if everything was okay and eventually found Shortt lying in the

basement in really bad shape. Specifically, Debord told the officers that Shortt was

bleeding from his mouth and gargling blood and that he thought Shortt was dying.

However, instead of calling for help, Debord told the officers that he went upstairs and

grabbed some of Shortt’s marijuana, took the keys to Shortt’s vehicle, and then left -16-

Shortt’s residence in Shortt’s vehicle, locking the door to the residence behind him. From

there, Debord claimed that he drove on Route 4 toward Dayton. Debord claimed that he

left the scene because he was worried about being blamed for Shortt’s death and about

the killer possibly returning.

{¶ 33} In addition to changing his story about his interactions with Shortt, Debord

changed his story about the BB gun found at the Knights Inn hotel room. Debord initially

told the officers that the BB gun belonged to his little brother, but eventually admitted to

obtaining the BB gun from Shortt’s Honda CRV.

Debord’s Confession to Jeff Salisbury

{¶ 34} Jeff Sailsbury and Debord were cellmates in the same “pod” at the

Montgomery County Jail after Debord was placed in custody on February 17, 2022. At

trial, Salisbury testified that he had arrived at the jail before Debord, as Salisbury was

taken into custody in late January/early February 2022. Salisbury testified that he had

recognized Debord when Debord arrived because they had met each other approximately

ten times outside of jail.

{¶ 35} Continuing, Salisbury testified that Debord had initially told him that he was

being incarcerated for a probation violation, but later revealed that he was a murder

suspect. Salisbury testified that, over a series of conversations, Debord had admitted to

robbing and shooting Shortt, and Debord had provided various details about the shooting.

For example, Debord told Salisbury that he had shot Shortt in the back while Shortt was

kneeling down doing something in the basement. Debord also told Salisbury that Shortt -17-

had turned around after being shot and looked at Debord really confused while saying

Debord’s nickname, “Stretch.” Debord further told Sailsbury that he had been confused

as to why Shortt was still alive and able to talk, and that he had pointed the gun at Shortt’s

chest and shot him again. Debord then told Salisbury that Shortt was still saying his

nickname even after he had been shot in the chest, so Debord decided to shoot him once

more in the face.

{¶ 36} In addition to that information, Debord told Salisbury that he had picked up

the shell casings after the shooting and thrown them out every few miles as he was driving

on Route 4. Debord also told Salisbury that he had thrown Shortt’s cell phone into the

river near Salem Avenue in Dayton.

Shortt’s Autopsy

{¶ 37} Mary Goolsby of the Montgomery County Coroner’s Office testified to

performing an autopsy on Shortt’s body. Goolsby testified that, to a reasonable degree

of medical certainty, Shortt’s cause of death was multiple gunshot wounds, and that the

manner of his death was a homicide. Goolsby’s testimony indicated that Shortt had been

shot in the back, chest, and head. Goolsby indicated that the gunshots to the back and

chest had been potentially survivable with medical intervention. However, Goolsby

noted that the most damaging injury Shortt sustained was the gunshot to the head, which

was near Shortt’s right eye. Goolsby testified that this gunshot resulted in bullet

fragments going into the left temporal lobe of Shortt’s brain, which caused brain damage

and a lot of bleeding. Goolsby also testified that the blood from that injury went down -18-

into Shortt’s airways and into his lungs and could have caused Shortt to gurgle or expel

blood while trying to breathe.

Jury Verdict and Bench Trial

{¶ 38} After presenting the foregoing evidence, the State rested its case. The

defense then moved for a Crim.R. 29 dismissal, which the trial court denied. Debord’s

case was thereafter submitted to the jury. After deliberation, the jury found Debord guilty

of all the charges and specifications for which he was tried. Following the jury’s verdict,

the State presented two exhibits establishing that Debord had a prior felony drug

conviction. Based on this evidence, the trial court found Debord guilty of having

weapons while under disability as charged in the indictment.

Sentencing

{¶ 39} At sentencing, the trial court merged all of the aggravated murder, felony

murder, and felonious assault counts and their attendant firearm specifications.

Following the merger of those offenses, the State elected to have Debord sentenced for

aggravated murder while committing aggravated robbery with a deadly weapon. For that

offense, the trial court sentenced Debord to a term of life in prison without parole plus an

additional three years in prison for the associated firearm specification.

{¶ 40} The trial court next merged the two counts of aggravated robbery.

Following the merger of those offenses, the State elected to have Debord sentenced for

the count of aggravated robbery alleging serious physical harm. For that offense, the -19-

trial court imposed an indefinite term of 11 to 16.5 years in prison plus an additional three

years in prison for the associated firearm specification. The trial court then ordered those

sentences to be served consecutively to the sentences imposed for aggravated murder

and its firearm specification.

{¶ 41} The trial court also merged the two counts of aggravated burglary.

Following the merger of those offenses, the State elected to have Debord sentenced for

the count of aggravated burglary alleging use of a deadly weapon. For that offense, the

trial court imposed a definite term of 11 years in prison plus an additional three years in

prison for the associated firearm specification. The trial court ordered the 11-year

sentence to be served consecutively to the sentences imposed for aggravated robbery

and aggravated murder, while ordering the associated firearm specification to be served

concurrently to those sentences.

{¶ 42} Lastly, the trial court imposed 18 months in prison for grand theft of a motor

vehicle, 36 months in prison for having weapons while under disability, and 36 months in

prison for each of the three counts of tampering with evidence. The trial court ordered

all of those sentences to be served consecutively to one another and consecutively to the

sentences imposed for aggravated burglary, aggravated robbery, aggravated murder,

and the associated firearm specifications. Accordingly, the trial court sentenced Debord

to an aggregate term of life in prison without parole plus a consecutive term of 41.5 to 47

years in prison. In addition, the trial court ordered Debord to pay Shortt’s mother

$4,294.21 in restitution for Shortt’s funeral expenses.

{¶ 43} Debord now appeals from his convictions, raising six assignments of error -20-

for review. For purposes of clarity, we will address Debord’s assignments of error out of

order.

Fifth Assignment of Error

{¶ 44} Under his fifth assignment of error, Debord claims that all of his convictions

were against the manifest weight of the evidence. We disagree.

{¶ 45} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction is against the

manifest weight of the evidence, the appellate court must review the entire record, weigh

the evidence and all reasonable 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), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

“The fact that the evidence is subject to different interpretations does not render the

conviction against the manifest weight of the evidence.” State v. Adams, 2d Dist. Greene

Nos. 2013-CA-61, 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14. A judgment

of conviction should be reversed as being against the manifest weight of the evidence

only in exceptional circumstances. Martin at 175.

{¶ 46} As previously discussed, Debord was convicted of single counts of -21-

aggravated murder, aggravated robbery, aggravated burglary, grand theft of a motor

vehicle, having weapons while under disability, and three counts of tampering with

evidence. Debord claims that these convictions were against the manifest weight of the

evidence because there were no witnesses to Shortt’s murder, no murder weapon was

found, and no DNA evidence linked him to the offenses. We, however, disagree with

Debord’s argument and find that the manifest weight of the evidence overwhelmingly

established that Debord killed Shortt by shooting him several times with a nine-millimeter

firearm. The manifest weight of the evidence also overwhelmingly established that

Debord stole property from Shortt, including but not limited to his vehicle, and then

tampered with evidence, i.e. Shortt’s cell phone, the shell casings at the scene of the

shooting, and Shortt’s vehicle and its contents.

{¶ 47} The testimony from Shortt’s mother established that Shortt was last heard

from on the evening of February 13, 2022, and that Shortt was with his friend Stretch,

a.k.a. Debord, that evening. The evidence from Horan’s cell phone data analysis also

established that Debord and Shortt’s cell phones were together in the area of Shortt’s

residence on February 13 between 6:14 p.m. and 8:17 p.m. Moreover, Debord himself

admitted that he was at Shortt’s residence on the evening of February 13 and that Shortt

was shot that night. Accordingly, the weight of the evidence established that Debord had

been with Shortt on the night of the shooting.

{¶ 48} The three bullets and the single shell casing recovered from the scene of

the shooting and the bullets recovered from Shortt’s body established that Shortt was

shot with a nine-millimeter firearm. Images and messages taken from Debord and -22-

Cooper’s cell phones and Sawvell’s trial testimony all established that Debord owned a

nine-millimeter firearm that Debord had attempted to sell the day after Shortt was shot.

The fact that Debord was trying to sell his firearm shortly after Shortt’s death, and the fact

the single shell casing found at the murder scene was expelled from the same firearm

that expelled three shell casings found at the Blackwood Avenue residence where Debord

often stayed suggested that Debord was the individual who shot Shortt.

{¶ 49} Moreover, while Debord was in jail, he admitted to his fellow inmate, Jeff

Salisbury, that he had shot Shortt. Salisbury’s trial testimony established that Debord

provided Salisbury with specific details that only the shooter could have known, i.e., that

Shortt was shot in the back, chest, and head. In addition, a body bag and remnants of

Shortt’s birth certificate, diploma, temporary driver’s license, and other documentation,

were discovered at the Blackwood Avenue residence where Debord stayed. We find

that the weight of all this evidence established that Debord was the individual who shot

and killed Shortt.

{¶ 50} The weight of the evidence also established that, after killing Shortt, Debord

stole Shortt’s Honda CRV, BB gun, cell phone, and drugs. As a result, we do not find

that the jury lost its way or created a manifest miscarriage of justice when it found Debord

guilty of aggravated murder while committing aggravated robbery with a deadly weapon,

aggravated robbery while inflicting serious physical harm, and grand theft of a motor

vehicle. Accordingly, those convictions were not against the manifest weight of the

evidence. The attendant firearm specifications for aggravated murder and aggravated

robbery were also not against the manifest weight of the evidence, as there was ample -23-

evidence establishing that Debord used a nine-millimeter firearm during those offenses.

{¶ 51} Debord’s conviction for aggravated burglary with a deadly weapon and its

attendant firearm specification was also not against the manifest weight of the evidence.

Generally speaking, aggravated burglary requires one to trespass into an occupied

structure by force, stealth, or deception with the purpose to commit any criminal offense

in the structure while another person is present. R.C. 2911.11(A). Here, the weight of

the evidence established that Debord used a firearm to commit aggravated murder and

aggravated robbery in Shortt’s residence while Shortt was present. For purposes of the

trespass element, we note that it does not matter that the evidence established that

Debord was invited over to Shortt’s residence, because “[w]e have recognized that ‘one

who enters a home with permission becomes a trespasser, subject to conviction for

aggravated burglary, if he assaults the victim after gaining entry.’ ” State v. Trigg, 2d

Dist. Montgomery No. 26757, 2016-Ohio-2752, ¶ 9, quoting State v Perry, 2d Dist.

Montgomery No 26421, 2015-Ohio-2181, ¶ 29, citing State v. Steffen, 31 Ohio St.3d 111,

114-115, 509 N.E.2d 383 (1987). See also State v. Metcalf, 2d Dist. Montgomery No.

24338, 2012-Ohio-6045, ¶ 20 (“Pertinently, ‘permission to enter a home is deemed

terminated by the act of committing an offense of violence against a person authorized to

revoke the permission.’ ”), quoting 2 Katz, Martin, Lipton & Crocker, Criminal Law, Section

104:6 (3d Ed.); State v. Hart, 2d Dist. Montgomery No. 19556, 2003-Ohio-5327, ¶ 43

(“[E}ven if Hart did not initially trespass, we conclude that a strong inference arises that

once the shooting started, any permission Hart might have had to be in the residence was

withdrawn, and that Hart knew that any privilege to remain on the premises was -24-

revoked.”). Therefore, the jury did not lose its way or create a manifest miscarriage of

justice by finding Debord guilty of aggravated burglary with a firearm specification.

{¶ 52} Debord’s three convictions for tampering with evidence were also not

against the manifest weight of the evidence. With regard to the count pertaining to

Shortt’s cell phone, the evidence established that Debord admitted to Salisbury that he

had thrown Debord’s cell phone into the river near Salem Avenue. Horan’s cell phone

data analysis also supported Debord’s admission to Salisbury. As previously discussed,

Horan testified that Debord’s and Shortt’s cell phones had been traveling in the same

direction until 8:39 p.m. on February 13, 2022, and that Debord’s phone continued to

travel to the east side of Dayton while Shortt’s phone remained stationary and

disappeared from the network an hour later. Horan testified that this information

indicated that Shortt’s phone was possibly ditched and noted that the phone could have

been thrown off a bridge since Debord would have had to cross over “rivers and bridges

and things of that nature * * * to get from the west side to the east side [of Dayton].” Trial

Tr. Vol. IV, p. 592. Moreover, Shortt’s phone was never recovered and there was no

other evidence presented at trial explaining the disappearance of Shortt’s phone.

Therefore, the weight of the evidence established that Debord impaired the availability of

Shortt’s cell phone as evidence by throwing it into a river. Accordingly, we do not find

that the jury lost its way or created a manifest miscarriage of justice by finding Debord

guilty of the tampering with evidence count that pertained to Shortt’s cell phone.

{¶ 53} As for the count that pertained to the shell casings, Debord confessed to

Salisbury that he had picked up the shell casings at the scene of the shooting and then -25-

thrown them away every few miles as he was driving on Route 4. Horan’s testimony

established that at 8:28 p.m. on the night of the shooting, Debord sent Cooper a

screenshot image of a GPS map showing that Debord’s cell phone was located on Route

4. Horan also testified that the cell phone data he analyzed fell in line with Debord’s

traveling along Route 4. This evidence suggested that Debord’s confession to Salisbury

about how he disposed of the shell casings was accurate.

{¶ 54} In addition, the evidence established that there were several nine-millimeter

bullets fired at the scene of the shooting, but only one shell casing was recovered there.

Because the State presented testimony establishing that nine-millimeter firearms do not

have an enclosure for spent shell casings, but instead expel them on the ground, the fact

that several bullets were fired and only one shell casing was recovered suggests that

Debord did indeed collect the shell casings after the shooting; he just happened to miss

the one found underneath Shortt. Accordingly, the weight of the evidence established

that Debord tampered with the shell casings and impaired their availability as evidence

by collecting them and throwing them away on Route 4. Therefore, we do not find that

the jury lost its way or created a manifest miscarriage of justice by finding Debord guilty

of the tampering with evidence count that pertained to the shell casings.

{¶ 55} As for the count pertaining to Shortt’s vehicle, the evidence established that

Debord wiped the windows and door handles of Shortt’s vehicle with bleach and

detergents, removed parts from the vehicle, and attempted to burn the vehicle’s contents.

Specifically, the evidence established that Debord attempted to burn the driver’s manual,

the vehicle’s certificate of registration, and Shortt’s temporary driver’s license, birth -26-

certificate, high school diploma, and insurance identification card. The evidence also

established that Debord went to the Clark gas station on February 15, 2022, to purchase

gasoline in order to burn the vehicle. Therefore, the weight of the evidence established

that Debord tampered with Shortt’s vehicle and the property contained therein with the

purpose to impair its availability as evidence. Accordingly, we do not find that the jury

lost its way or created a manifest miscarriage of justice in finding Debord guilty of the

tampering with evidence count that pertained to Shortt’s vehicle.

{¶ 56} Lastly, because the evidence established that Debord had a prior conviction

for a felony drug offense and possessed a nine-millimeter firearm, his conviction for

having weapons while under disability also was not against the manifest weight of the

evidence. Because Debord’s convictions for aggravated murder, aggravated robbery,

aggravated burglary, grand theft of a motor vehicle, tampering with evidence, having

weapons while under disability, and the associated firearm specifications were not against

the manifest weight of the evidence, his fifth assignment of error is overruled.

First Assignment of Error

{¶ 57} Under his first assignment of error, Debord challenges two evidentiary

rulings made by the trial court during his jury trial. Debord first claims that the trial court

erred by allowing the State to impeach its own witness, i.e., John Wilson, using a prior

inconsistent statement made by Wilson during his video-recorded police interview.

Debord also claims that the trial court erred by allowing certain photographs of the

deceased victim to be admitted into evidence. -27-

Standard of Review

{¶ 58} Generally speaking, “[w]e review a trial court’s evidentiary rulings for an

abuse of discretion, provided an objection is made at trial.” (Citation omitted.) State v.

Beasley, 2d Dist. Montgomery No. 28016, 2019-Ohio-1901, ¶ 28; State v. Wright, 2d Dist.

Miami No. 2021-CA-17, 2022-Ohio-1786, ¶ 98. Under an abuse-of-discretion standard

of review, we are required to determine “whether the trial court acted unreasonably,

arbitrarily, or unconscionably in deciding the evidentiary issues[.]” (Citation omitted.)

State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 43. “We will not

disturb a trial court’s evidentiary rulings unless we find ‘an abuse of discretion that has

created material prejudice.’ ” State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903,

45 N.E.3d 208, ¶ 53, quoting Noling at ¶ 43.

{¶ 59} “[W]hen an appellant alleges a trial court’s evidentiary ruling was based on

a misconstruction of the law or an erroneous standard, the appellate court must review

the trial court’s evidentiary ruling using a de novo standard of review.” (Emphasis

deleted.) Village of New Holland v. Murphy, 4th Dist. Pickaway No. 18CA6, 2019-Ohio-

2423, ¶ 9, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528,

¶ 16 (“[d]e novo review is appropriate ‘where a trial court’s order is based on an erroneous

standard or a misconstruction of the law’ ”), quoting Castlebrook, Ltd. v. Dayton Properties

Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2d Dist.1992). Accord In re

Disinterment of Glass, 2d Dist. Montgomery No. 29160 and 29161, 2022-Ohio-28, ¶ 18. -28-

“De novo review requires an ‘independent review of the trial court’s decision without any

deference to the trial court’s determination.’ ” State v. Clay, 2d Dist. Miami No. 2015-

CA-17, 2016-Ohio-424, ¶ 5, quoting Jackson v. Internatl. Fiber, 169 Ohio App.3d 395,

2006-Ohio-5799, 863 N.E.2d 189, ¶ 17 (2d Dist.).

State’s Impeachment of John Wilson – Evid.R. 607(A)

{¶ 60} As previously noted, Debord first contends that the trial court erred by

allowing the State to impeach its own witness, John Wilson, using a prior inconsistent

statement that Wilson made during his video-recorded police interview. “Evid.R. 607(A)

authorizes a party to impeach its own witness ‘by means of a prior inconsistent statement

only upon a showing of surprise and affirmative damage.’ ” State v. Mckelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 119, quoting Evid.R. 607(A). “[W]hether

the elements of surprise and affirmative damage have been established * * * is entrusted

to the broad, sound discretion of the trial court.” State v. Litteral, 2d Dist. Clark No. 2021-

CA-10, 2022-Ohio-1187, ¶ 13, citing State v. Diehl, 67 Ohio St.2d 389, 391, 423 N.E.2d

1112 (1981).

{¶ 61} A party demonstrates surprise under Evid.R. 607(A) “when a witness’s

testimony materially differs from a prior statement and counsel had no reason to believe

that the witness would testify as he did at trial.” McKelton at ¶ 120; State v. Gutierrez,

2d Dist. Montgomery No. 29306, 2022-Ohio-1692, ¶ 18. “The ‘affirmative damage’

requirement is satisfied if a ‘party’s own witness testifies to facts that contradict, deny, or

harm that party’s trial position.’ ” Id. at ¶ 121, quoting State v. Blair, 34 Ohio App.3d 6, -29-

9, 516 N.E.2d 240 (8th Dist.1986); State v. Dearmond, 179 Ohio App.3d 63, 2008-Ohio-

5519, 900 N.E.2d 692, ¶ 28 (2d Dist.).

{¶ 62} “ ‘Affirmative damage’ is not shown where the witness denies knowledge of

the facts contained in his prior statement or where he states that he does not remember

the facts stated therein.” Dayton v. Combs, 94 Ohio App.3d 291, 299, 640 N.E.2d 863

(2d Dist.1993); State v. Risden, 2d Dist. Montgomery No. 22930, 2010-Ohio-991, ¶ 74;

State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 33 (2d Dist.). Therefore, “[t]he fact

that a witness does not testify as expected does not, in and of itself, constitute ‘affirmative

damage’ as contemplated by Evid.R. 607.” State v. Williams, 2016-Ohio-5827, 71

N.E.3d 592, ¶ 30 (1st Dist.).

{¶ 63} Although it is well established that we review the application of Evid.R.

607(A) for an abuse of discretion, Debord asserts that we should instead review the issue

de novo. Debord is incorrect because the issue of whether surprise and affirmative

damage have been established per Evid.R. 607(A) does not involve a misconstruction of

the law or the application of an erroneous standard. See Morris, 132 Ohio St.3d 337,

2012-Ohio-2407, 972 N.E.2d 528, at ¶16-18. A de novo review is also inappropriate in

this case because Debord waived all but plain error for appeal by failing to raise an

objection to the State’s impeachment of Wilson. See State v. Bahns, 185 Ohio App.3d

805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.) (“[f]ailure to object waives all but

plain error”). Therefore, Debord’s claim that the trial court erred by allowing the State to

impeach Wilson is limited to a plain-error review.

{¶ 64} To constitute plain error, the error at issue must be an obvious defect in the -30-

trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d

Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). “An error affecting

substantial rights ‘must have affected the outcome of the trial.’ ” State v. Cenexant,

2023-Ohio-3388, __ N.E.3d __, ¶ 16 (2d Dist.), quoting State v. Barnes, 94 Ohio St.3d

21, 27, 759 N.E.2d 1240 (2002). Therefore, plain error arises only when “but for the

error, the outcome of the trial clearly would have been otherwise.” State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. Plain error should

be noticed “with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

{¶ 65} In this case, the State called Wilson to testify at trial as part of its case-in-

chief. During his direct examination, Wilson testified that on February 14, 2022, the day

after Shortt was shot, Debord came to Wilson’s house with some marijuana and

approximately $1,000 in cash. The State then asked Wilson if Debord had said anything

that day about a shooting. Wilson responded: “I don’t know * * * it was like eight months

ago.” Trial Tr. Vol. I, p. 145. The State also asked Wilson if he ever spoke to the police

about what Debord had said to him that day, and Wilson responded: “I told the police that

I got electrocuted by 7,200 volts and my memory’s kind of bad.” Id.

{¶ 66} After Wilson’s response, the State began to ask Wilson if watching the video

of his police interview would help refresh his memory as to what he had told the police

Debord said to him. The trial court, however, interrupted the State and stated the

following:

If you’re going to impeach, then I wish you would just impeach. By -31-

that, I mean lay a foundation of who he talked to, when he talked to them.

If he doesn’t remember, that’s a basis to impeach. But I don’t know that

I’m going to go with refreshing at this juncture[.]

(Emphasis added.) Trial Tr. Vol. I, p. 145.

{¶ 67} Following the trial court’s statement, the State attempted to lay a foundation

to impeach Wilson. In doing so, the State asked Wilson if he remembered being

interviewed by the police and Wilson responded that he did. Wilson also confirmed that

he had watched a portion of the video-recorded interview in the prosecutor’s office.

Despite this, Wilson testified that he did not remember what the police had asked him

during the interview. The State then directly asked Wilson if, during the interview, he

remembered telling the police that Debord had told him that he had shot someone. In

response, Wilson said: “No.” Trial Tr. Vol. I, p. 148. After Wilson’s response, the trial

court permitted the State to impeach Wilson by playing a portion of his video-recorded

police interview that showed Wilson telling the police that Debord had told him he

(Debord) had shot someone.

{¶ 68} Upon review, we find that the trial court committed an obvious error when it

permitted the State to impeach Wilson in such a manner, because there was no showing

of affirmative damage to the State as required by Evid.R. 607(A). Specifically, Wilson

did not testify to any facts which contradicted, denied, or harmed the State’s position.

Wilson merely testified that he did not remember if Debord had told him about a shooting

and that he did not remember what he had told the police during his interview. As

previously discussed, “[a]ffirmative damage” does not exist when a witness denies -32-

knowledge or fails to remember. Combs, 94 Ohio App.3d at 299, 640 N.E.2d 863;

Risden, 2d Dist. Montgomery No. 22930, 2010-Ohio-991, at ¶ 74. The trial court’s

comment, “If [Wilson] doesn’t remember, that’s a basis to impeach,” directly contradicts

this principle.

{¶ 69} That said, we do not find that the outcome of Debord’s trial would have been

clearly different absent the trial court’s error. The evidence presented at trial

overwhelmingly established that Debord shot and killed Shortt. The State presented an

additional witness, Salisbury, who testified that Debord had admitted to shooting Shortt,

and there was a plethora of other evidence that indicated Debord was the shooter.

Therefore, based on the overwhelming evidence of Debord’s guilt, Debord cannot

establish that the outcome of his trial would have been different had the trial court not

permitted the State to impeach Wilson regarding a single statement that Wilson made to

the police. Accordingly, the trial court’s impeachment error was harmless, meaning that

Debord cannot establish plain error warranting a reversal of his conviction.

Admission of Photographic Evidence – Evid.R. 403(B)

{¶ 70} Debord next claims that the trial court erred by admitting certain

photographs into evidence that depicted Shortt’s body at the crime scene. Debord’s

counsel objected to the admission of the photographs on grounds that several other

photographs of Shortt’s body had already been shown to the jury during the course of

trial.

{¶ 71} Debord initially contends that it is unclear from the record whether his -33-

counsel’s objection was made under Evid.R. 403(A) or Evid.R. 403(B). Evid.R. 403(A)

governs the mandatory exclusion of relevant evidence and provides that: “Although

relevant, evidence is not admissible if its probative value is substantially outweighed by

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Evid.R. 403(B) governs the discretionary exclusion of relevant evidence and provides

that: “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by considerations of undue delay, or needless presentation of cumulative

evidence.”

{¶ 72} After reviewing the record, we find that counsel’s objection fell under Evid.R.

403(B), because counsel suggested that the photographs at issue were needlessly

cumulative when he stated the following during his objection:

The State has shown several photos of the deceased. I get the

detective took pictures of what’s going on, but I do not believe that any more

pictures need to be shown to indicate what’s happened. * * * Obviously, we

know he’s deceased. I don’t see any further evidentiary value of keep (sic)

showing pictures.

Trial Tr. Vol. III, p. 370.

{¶ 73} “Pursuant to Evid.R. 403(B), it is within the sound discretion of the trial court

to exclude cumulative evidence only when the probative value of the evidence is

substantially outweighed by the danger of a material prejudice to the defendant.” State

v. Arrone, 2d Dist. Greene No. 2005-CA-89, 2006-Ohio-4144, ¶ 152. “ ‘ “Cumulative

evidence” ’ is additional evidence of the same kind to the same point.” State v. Jali, 2d -34-

Dist. Montgomery No. 28294, 2020-Ohio-208, ¶ 41, quoting Kroger v. Ryan, 83 Ohio St.

299, 94 N.E. 428 (1911), syllabus. “The mere fact that evidence is repetitive will not be

considered reversible error unless the defendant was unfairly prejudiced thereby.” State

v. Baker, 2d Dist. Montgomery No. 23933, 2011-Ohio-1820, ¶ 16, quoting State v. Smith,

80 Ohio St.3d 89, 108-109, 684 N.E.2d 668 (1997). “The pertinent question is whether

the evidence was unfairly prejudicial to the defendant, not whether it was unfavorable to

him.” Id.

{¶ 74} It is well established that an abuse of discretion standard of review applies

to an Evid.R. 403(B) determination. See Calderon v. Sharkey, 70 Ohio St.2d 218, 222,

436 N.E.2d 1008 (1982); State v. Shine, 2018-Ohio-1972, 113 N.E.3d 160, ¶ 60 (8th

Dist.); State v. Rice, 2d Dist. Montgomery No. 28572, 2020-Ohio-4404, ¶ 33.

Nonetheless, Debord asserts that we should review the matter de novo. Debord claims

that a de novo review is appropriate because the trial court applied the incorrect standard

under Evid.R. 403(B) when it overruled his objection. See Morris, 132 Ohio St.3d 337,

2012-Ohio-2407, 972 N.E.2d 528, at ¶ 16. Specifically, Debord claims that the trial court

incorrectly overruled his objection on grounds that the court did not find “any

duplicitousness” in the presentation of the photographs at issue. Because the term

“duplicitousness” means deceitful,2 and because whether the photographs were deceitful

has no bearing on a Evid.R. 403(B) determination, Debord claims that the trial court’s

ruling was based on an erroneous standard, which warrants a de novo review of the

2 “Duplicitous” is defined as: “Given to a tricky doubleness in character, speech, or conduct; esp., deceitful in behaving or speaking differently with different persons in relation to the same matter, with the intent of fooling one or more of them.” Black’s Law Dictionary (11th Ed. 2019). -35-

Evid.R. 403(B) issue.

{¶ 75} Based on the context of Debord’s objection, we presume that the trial court

simply misused the term “duplicitousness,” as it sounds similar to “duplicative,” a term

that makes more sense in the context of the objection. Regardless, even if conducting

a de novo review as advocated by Debord, we would not find that the trial court erred by

admitting the photographs at issue. Although the photographs at issue were cumulative

in that two other photographs showing Shortt’s body in the basement, i.e. State’s Ex. Nos.

70 and 71, had already been shown to the jury, they were not needlessly cumulative.

They were not needlessly cumulative because State’s Ex. Nos. 70 and 71 showed

Shortt’s body at a distance while the photographs to which Debord objected, i.e. State’s

Ex. Nos. 74, 75, and 76, showed Shortt’s body at different angles, which allowed the

jurors to see where Shortt’s body was in relation to the bullet holes in the wall, the areas

where blood pooled from Shortt’s body, and where Shortt had aspirated blood. In other

words, the photographs at issue had a different evidentiary value from the other

photographs that depicted Shortt’s body, as the other photographs simply gave a lay of

the land. Therefore, we do not find that the probative value of the photographs at issue

was substantially outweighed by their cumulative nature.

{¶ 76} Furthermore, although the trial court’s reasoning for admitting the

photographs at issue was technically incorrect, “[a] decision that achieves the right result

must be affirmed, even if the wrong reasoning is used to justify the decision, because an

error in reasoning is not prejudicial.” John A. Becker Co. v. Jedson Engineering, Inc.,

2018-Ohio-3924, 121 N.E.3d 788, ¶ 19 (2d Dist.); State v. Blanton, 2023-Ohio-89, 206 -36-

N.E.3d 14, ¶ 33 (2d Dist.) (“ ‘If a trial court has stated an erroneous basis for its judgment,

an appellate court will affirm the judgment if it is legally correct on other grounds, that is,

when it achieves the right result for the wrong reasons.’ ”), quoting Newcomb v. Dredge,

105 Ohio App. 417, 152 N.E.2d 801 (2d Dist.1957). Because we find that it was

appropriate and not unfairly prejudicial to admit the photographs at issue, the trial court’s

decision to that effect must be affirmed despite its faulty reasoning.

{¶ 77} We note that Debord also tangentially challenges the trial court’s admission

of State’s Exhibit No. 79, a diagram of the basement where Shortt was shot, on grounds

that it was more prejudicial than probative. Because Debord did not object to the

diagram at trial, its admission may only be reviewed for plain error. See Bahns, 185 Ohio

App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, at ¶ 25 (“[f]ailure to object waives all but

plain error”). As previously discussed, plain error arises only when “but for the error, the

outcome of the trial clearly would have been otherwise.” Long, 53 Ohio St.2d 91, 372

N.E.2d 804, paragraph two of the syllabus. Upon review, we find no error in admitting

the diagram. Even if the trial court had erred in admitting the diagram, given the

overwhelming evidence of Debord’s guilt, the outcome of his trial would not have been

different had the diagram not been admitted. Accordingly, Debord cannot establish plain

error.

{¶ 78} Debord’s first assignment of error is overruled.

Second Assignment of Error

{¶ 79} Under his second assignment of error, Debord contends that his trial -37-

counsel provided ineffective assistance by failing to object or properly object to the

evidence discussed under his first assignment of error, i.e., the State’s impeachment of

Wilson, the photographs of Shortt’s body at the crime scene, and the basement diagram.

{¶ 80} This court reviews alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), which was adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases,

in order to prevail on an ineffective assistance claim, a defendant must show that his trial

counsel rendered deficient performance and that his counsel’s deficient performance

prejudiced the defense. Strickland at paragraph two of the syllabus; Bradley at

paragraph two of the syllabus. The failure to make a showing of either deficient

performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland

at 697.

{¶ 81} To establish deficient performance, a defendant must show that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688. In evaluating counsel’s performance, a reviewing court “must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689.

{¶ 82} To establish prejudice, a defendant must show that there is “a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A -38-

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.

{¶ 83} Even if this court were to determine that Debord’s trial counsel performed

deficiently by failing to object or properly object to the evidence at issue, Debord cannot

establish that he was prejudiced by counsel’s deficient performance in that regard. Even

if counsel had objected/properly objected at trial and even if the evidence at issue had

not been admitted at trial, there is not a reasonable probability that the absence of that

evidence would have affected the outcome of Debord’s trial. As previously discussed,

there was an overwhelming amount of evidence establishing that Debord shot Shortt

several times with a nine-millimeter firearm, stole items of property from Shortt’s

residence, including his vehicle, and then tampered with various items of evidence.

Accordingly, Debord cannot establish any prejudice resulting from his trial counsel’s

failure to object to the evidence at issue. Without a showing of prejudice, Debord’s

ineffective assistance of counsel claim necessarily fails.

{¶ 84} Debord’s second assignment of error is overruled.

Third Assignment of Error

{¶ 85} Under his third assignment of error, Debord claims that the trial court erred

by failing to suppress the statements he made during his interview with Sgt. Wale and

Det. Stout. Debord asserts that his statements should have been suppressed because

he did not knowingly, intelligently, and voluntarily waive his Miranda rights. Debord also

contends that his statements should have been suppressed because they were coerced -39-

by the detectives’ false promises of leniency.

{¶ 86} “Appellate review of a motion to suppress presents a mixed question of law

and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

When ruling on a motion to suppress, “the trial court assumes the role of trier of fact and

is therefore in the best position to resolve factual questions and evaluate the credibility of

witnesses.” Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).

“Consequently, an appellate court must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.” Id., citing State v. Fanning, 1 Ohio St.3d

19, 437 N.E.2d 583 (1982). “Accepting these facts as true, the appellate court must then

independently determine, without deference to the conclusion of the trial court, whether

the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124 Ohio

App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 87} In this case, the trial court made no findings of fact when overruling

Debord’s motion to suppress. “Crim.R. 12(F) mandates that a trial court state its

essential findings on the record when factual issues are involved in determining a motion

to suppress.” State v. Brown, 2d Dist. Montgomery No. 24297, 2012-Ohio-195, ¶ 10.

However, “[i]n order to invoke this provision, trial counsel must request the trial court to

state its essential findings of fact on the record.” (Citation omitted.) Id. Accord State

v. Allen, 2d Dist. Montgomery No. 28874, 2021-Ohio-3047, ¶ 26, citing State v. Adams,

146 Ohio St.3d 232, 2016-Ohio-3043, 54 N.E.3d 1227, ¶ 16. “[I]f the defendant does not -40-

object to the lack of findings, the error is harmless if the evidence is sufficient to

demonstrate the basis for the trial court’s decision.” State v. White, 2d Dist. Montgomery

No. 23905, 2011-Ohio-503, ¶ 19, citing State v. Sanchez, 2d Dist. Greene No. 1997-CA-

32, 1998 WL 199618, *10 (Apr. 24, 1998).

{¶ 88} Because Debord did not request findings of fact on his motion to suppress

or object to the trial court’s failure to state any findings of fact, we shall directly examine

the record to determine whether there was sufficient evidence to show that the trial court’s

decision overruling Debord’s motion to suppress was supported by the record and legally

justified. See State v. Jackson, 1st Dist. Hamilton No. C-190676, 2021-Ohio-517, ¶ 8,

citing State v. Shields, 1st Dist. Hamilton No. C-100362, 2011-Ohio-1912, ¶ 9.

Miranda Waiver

{¶ 89} As previously discussed, Debord claims that the statements he made during

his interview with Sgt. Wale and Det. Stout should have been suppressed because he did

not knowingly, intelligently, and voluntarily waive his Miranda rights. We disagree.

{¶ 90} “In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

the United States Supreme Court outlined procedural safeguards needed for securing the

privilege against self-incrimination guaranteed by the Fifth Amendment to the United

States Constitution.” State v. Hudson, 2d Dist. Montgomery No. 29333, 2022-Ohio-

3253, ¶ 30. “Miranda requires police to give a suspect certain prescribed warnings

before custodial interrogation commences and provides that if the warnings are not given,

any statements elicited from the suspect through police interrogation in that circumstance -41-

must be suppressed.” State v. Petitjean, 140 Ohio App.3d 517, 523, 748 N.E.2d 133 (2d

Dist.2000). “Furthermore, if, after Miranda warnings are given, the suspect indicates that

he or she wishes to remain silent, or if the suspect states that he or she wants an attorney,

the interrogation must cease.” Hudson at ¶ 30, citing Maryland v. Shatzer, 559 U.S. 98,

104, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010).

{¶ 91} “[A] suspect may effectively waive the rights conveyed in the Miranda

warnings only if the waiver is made voluntarily, knowingly and intelligently.” State v.

Dailey, 53 Ohio St.3d 88, 559 N.E.2d 459 (1990), citing Miranda at 444 and 475. The

United States Supreme Court has indicated that this inquiry has two separate dimensions:

First, the relinquishment of the right must have been voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception. Second, the waiver must have been

made with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it. Only if the “totality of

the circumstances surrounding the interrogation” reveal both an uncoerced

choice and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), quoting

Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

{¶ 92} When considering the totality of the facts and circumstances, we look at “the

age, mentality, and prior criminal experience of the accused; the length, intensity, and

frequency of interrogation; the existence of physical deprivation or mistreatment; and the -42-

existence of threat or inducement.” State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d

1051 (1976), paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911,

98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978). Accord State v. Verdell, 2d Dist. Montgomery

No. 27786, 2018-Ohio-4766, ¶ 32. That said, a “written waiver of rights * * * is strong

proof” that the waiver was valid. State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844

(1988), citing North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286

(1979).

{¶ 93} In this case, Debord does not dispute the fact that he signed a written waiver

of his Miranda rights prior to his interview with Sgt. Wale and Det. Stout. Debord,

however, claims that the waiver was not knowingly, intelligently, and voluntarily made due

to his having been in custody for 23 hours before the two-and-half-hour interview and due

to his use of marijuana. In addition, Debord claims that Sgt. Wale provided an

incomplete definition of the word “coercion” while they were going over the waiver of rights

portion of the pre-interview form, and that his (Debord’s) lack of understanding of the word

“coercion” prevented him from knowingly and intelligently waiving his Miranda rights.

{¶ 94} Upon review, we find that Debord’s claim that his being in custody for 23

hours before the interview prevented him from knowingly, intelligently, and voluntarily

waiving his Miranda rights is belied by the video evidence. The video evidence clearly

established that Debord was alert and coherent at all times during the interview and that

he understood the rights he was waiving. Although Debord stumbled over the word

“coercion” while reading the wavier of rights portion of the pre-interview form and

indicated that he did not know what “coercion” meant, Sgt. Wale responded to Debord’s -43-

confusion by stating that coercion “means that I’m not taking a phone book and whopping

you over the head to get answers out of you.” State’s Exhibit No. 1 (47:35-47:45).

Following this explanation, Debord exhibited no further confusion.

{¶ 95} In State v. Finley, 2d Dist. Clark No. 1996-CA-30, 1998 WL 321017 (June

19, 1998), this court found a similar explanation was sufficient to convey the meaning of

coercion. In Finley, the officer said: “Do you know what coercion is? I’m not pulling your

hair and twisting your arm to get you to talk, that’s what that means basically, okay?” Id.

at *7. We found this explanation “sufficient for the purposes of conveying to Finley the

notion that the police did not force her to cooperate.” Id. at *10. We also found that

“the fact that the officer did not elaborate concerning all possible forms of coercion * * *

[did] not render Finely’s signed waiver of her Miranda rights involuntary.” Id.

{¶ 96} Like Finley, we find that Sgt. Wale’s explanation sufficiently conveyed the

meaning of coercion to Debord, as it suggested the officers were not forcing Debord to

answer their questions. Accordingly, Debord’s claim that Sgt. Wale’s explanation of

coercion prevented him from knowingly, intelligently, and voluntarily waiving his Miranda

rights lacks merit.

{¶ 97} With regard to Debord’s claim that his marijuana use prevented him from

knowingly, intelligently, and voluntarily waiving his Miranda rights, we note that the video

evidence established that Debord told the officers that he was a marijuana user, not that

he had recently used marijuana. Since Debord had been in custody for 23 hours before

the interview, he presumably would not have been under the influence of marijuana at the

time of the interview. -44-

{¶ 98} Even if Debord had been under the influence of marijuana, “[i]ntoxication

will not render a defendant’s waiver of his Miranda rights invalid unless his ability to

reason is sufficiently impaired.” Verdell, 2d Dist. Montgomery No. 27786, 2018-Ohio-

4766, at ¶ 34, citing State v. Monticue, 2d Dist. Miami No. 2006-CA-33, 2007-Ohio-4615,

¶ 12 and State v. Stewart, 75 Ohio App.3d 141, 147, 598 N.E.2d 1275 (11th Dist.1991)

(recognizing that alcohol consumption will not render a defendant’s waiver of his Miranda

rights invalid unless his ability to reason is sufficiently impaired). Here, the video

evidence did not indicate that Debord’s ability to reason was impaired. Although Debord

spoke quickly at times, he was otherwise clear, alert, and coherent during the interview.

Accordingly, Debord’s claim that his marijuana use prevented him from knowingly,

intelligently, and voluntarily waiving his Miranda rights lacks merit.

{¶ 99} We further find that the length of Debord’s interview did not affect the validity

of his Miranda waiver. The video evidence established that Debord was in the interview

room for 37 minutes before the officers arrived to interview him. Once the officers

arrived, the entire interview lasted approximately two and a half hours, which is not

unreasonable given the nature of the case that was being investigated. At the beginning

of the interview, the officers spoke with Debord for nine minutes before discussing

Debord’s Miranda rights. Sgt. Wale testified, and the video evidence confirmed, that

during that initial nine minutes, he and Det. Stout engaged in small talk with Debord.

Specifically, Sgt. Wale asked Debord about his probation, his past girlfriends, and some

other personal, non-criminal background information that was unrelated to the homicide

investigation. Sgt. Wale testified that while doing so, he was assessing whether Debord -45-

was alert and able to understand what was going on during the interview.

{¶ 100} After reviewing the video of Debord’s interview with Sgt. Wale and Det.

Stout, we find that the officers maintained a conversational, non-threatening tone during

their discussion with Debord. The officers also asked Debord if he was comfortable and

offered him a beverage. There was no coercion of any kind exerted on Debord to induce

him to waive his Miranda rights. Nothing in the record indicates that the length of the

interview affected the validity of Debord’s Miranda waiver, as the waiver occurred within

nine minutes of the interview and the officers did not engage in any inappropriate conduct

during that time or anytime thereafter.

{¶ 101} After reviewing the video evidence and Sgt. Wale’s testimony, we find that

the totality of the circumstances surrounding Debord’s interview revealed that his Miranda

waiver was a free and deliberate choice made without coercion. The totality of the

circumstances also established that Debord understood his Miranda rights and that

Debord had the requisite capacity to waive them. Accordingly, the trial court properly

concluded that Debord knowingly, intelligently, and voluntarily waived his Miranda rights.

Police Coercion

{¶ 102} Debord next contends that the statements he made during his interview

with the officers should have been suppressed because they were coerced by the officers’

making false promises of leniency in exchange for Debord’s providing them with

information about Shortt’s murder. Specifically, Debord claims that the officers

insinuated that he might be charged with premeditated murder unless he provided -46-

information suggesting that Shortt’s murder was unplanned. Debord also claims that the

officers insinuated that the prosecutors would be less willing to offer him a plea deal

unless he provided the officers with a complete picture of what had occurred on the night

of Shortt’s murder. As a result, Debord claims that his statements during the interview

were rendered involuntary because they were made under the false promise of a more

favorable legal outcome.

{¶ 103} Even where a valid Miranda waiver exists, as in this case, “* * * a statement

may be involuntary and subject to suppression if the statement is the product of actual

police coercion.” State v. Gray-Mosher, 2018-Ohio-1422, 101 N.E.3d 729, ¶ 8 (2d Dist.),

citing State v. Nevarez-Reyes, 2d Dist. Montgomery No. 27047, 2017-Ohio-2610, ¶ 31-

32. “[A] court may find coercion when law-enforcement officers ‘persuad[e] or deceiv[e]

the accused, with false promises or information, into relinquishing his rights and

responding to questions.” State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74

N.E.3d 319, ¶ 111, quoting Edwards, 49 Ohio St.2d at 39, 358 N.E.2d 1051. Accord

State v. Gitzinger, 2d Dist. Montgomery No. 27893, 2018-Ohio-4445, ¶ 13. Accordingly,

“false promises of leniency and misrepresentations of potential punishments by the police

are improper.” State v. Williams, 2d Dist. Montgomery No. 28648, 2021-Ohio-1340,

¶ 63, citing State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833, ¶ 18 (2d Dist.).

{¶ 104} In contrast to false promises of leniency, “a mere suggestion that

cooperation may result in more lenient treatment is neither misleading nor unduly

coercive, as people ‘convicted of criminal offenses generally are dealt with more leniently

when they have cooperated with the authorities.’ ” State v. Stringham, 2d Dist. Miami -47-

No. 2002-CA-9, 2003-Ohio-1100, ¶ 16, quoting State v. Farley, 2d Dist. Miami No. 2002-

CA-2, 2002-Ohio-6192, ¶ 44. (Other citation omitted.) “Likewise, an investigator’s offer

to ‘help’ if a defendant confesses is not improper.” Id., citing State v. Chase, 55 Ohio

St.2d 237, 247, 378 N.E.2d 1064 (1978). (Other citation omitted.) “In addition,

admonitions to tell the truth are considered neither threats nor promises and are

permissible.” Id., citing State v. Loza, 71 Ohio St.3d 61, 67, 641 N.E.2d 1082 (1994).

Therefore, “[o]fficers may discuss the advantages of telling the truth, advise suspects that

cooperation will be considered, or even suggest that a court may be lenient with a truthful

defendant.” Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, at ¶ 111; State

v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 198.

{¶ 105} In this case, the trial court failed to issue a ruling on the portion of Debord’s

motion to suppress arguing that his statements were rendered involuntary by false

promises of leniency, as the trial court only held that Debord validly waived his Miranda

rights. Had the trial court’s failure to rule on the false promises of leniency aspect of

Debord’s motion to suppress been brought to the trial court's attention, the trial court could

have ruled on that issue. See State v. Walton, 5th Dist. Fairfield No. 98 CA 00046, 1999

WL 547580, *3 (June 30, 1999). “Normally, an appellate court need not consider an

error that was not called to the attention of the trial court at a time when the error could

have been avoided or corrected by the trial court.” (Citation omitted.) State v. Hill, 92

Ohio St.3d 191, 196, 749 N.E.2d 247 (2001); Schade v. Carnegie Body Co., 70 Ohio

St.2d 207, 210, 436 N.E.2d 1001 (1982). However, under Crim.R. 52(B), “[p]lain errors

or defects affecting substantial rights may be noticed although they were not brought to -48-

the attention of the court.”

{¶ 106} In this case, we find no error, plain or otherwise, with regard to the

Debord’s interview. The video evidence established that, toward the end of Debord’s

interview, the officers suggested that Debord was not being honest with them and advised

him that it would be in his best interest to tell the truth about his involvement in Shortt’s

death. At no point did the officers indicate that Debord’s truthfulness would guarantee

him a plea deal or any kind of leniency from the trial court. Rather, the officers indicated

that Debord’s cooperation and honesty could potentially yield a more beneficial outcome.

This did not amount to coercion and did not render Debord’s interview statements

involuntary. Accordingly, Debord’s claim that his statements were coerced by false

promises of leniency lacks merit.

{¶ 107} Because Debord knowingly, intelligently, and voluntarily waived his

Miranda rights and because Debord’s interview statements were not coerced by false

promises of leniency, the trial court properly overruled his motion to suppress.

{¶ 108} Debord’s third assignment of error is overruled.

Fourth Assignment of Error

{¶ 109} Under his fourth assignment of error, Debord contends that he was denied

his constitutional right to a fair trial based on the cumulative effect of the errors raised

under his first and third assignments of error. We disagree.

{¶ 110} Pursuant to the cumulative error doctrine “a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial even -49-

though each of the numerous instances of trial-court error does not individually constitute

cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d

865, ¶ 223, citing State v. DeMarco, 31 Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987).

“[I]n order * * * to consider whether ‘cumulative’ error is present, we would first have to

find that multiple errors were committed in this case.” State v. Madrigal, 87 Ohio St.3d

378, 398, 721 N.E.2d 52 (2000). “ ‘We then must find a reasonable probability that the

outcome of the trial would have been different but for the combination of the separately

harmless errors.’ ” State v. Mize, 2022-Ohio-3163, 195 N.E.3d 574, ¶ 76 (2d Dist.),

quoting State v. Durant, 159 Ohio App.3d 208, 2004-Ohio-6224, 823 N.E.2d 506, ¶ 38

(2d Dist.).

{¶ 111} In this case, we found no errors under Debord’s third assignment of error,

which concerned his motion to suppress. Under Debord’s first assignment of error, we

found that the trial court committed two harmless errors: (1) permitting the State to

impeach its own witness without a showing of affirmative damage as required by 607(A);

and (2) using improper reasoning to overrule his Evid.R. 403(B) objection to the

admission the photographs of Shortt’s body at the crime scene. When considering these

two harmless errors together, we do not find that there is a reasonable probability that

they affected the outcome of Debord’s trial. Although the record establishes that the trial

court used improper reasoning to admit the photographs that depicted Shortt’s body at

the crime scene, we ultimately found that those photographs were not needlessly

cumulative and were properly admitted into evidence. And as previously discussed,

even if the impeachment and photographic evidence at issue had not been allowed at -50-

trial, there was still a significant amount of evidence that established Debord had shot

and killed Shortt, stole Shortt’s vehicle and other property, and tampered with evidence.

Accordingly, we do not find that the cumulative effect of the trial court’s two harmless

errors deprived Debord of a fair trial.

{¶ 112} Debord’s fourth assignment of error is overruled.

Sixth Assignment of Error

{¶ 113} Under his sixth assignment of error, Debord argues that the indefinite

sentencing scheme found in the Reagan Tokes Law violated his constitutional right to

due process, his right to trial by jury, and the separation-of-powers doctrine. We

disagree.

{¶ 114} The Reagan Tokes Law introduced an indefinite-sentencing scheme for

first and second-degree felonies committed after March 22, 2019. See R.C. 2967.271;

State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-5359, ¶ 27. In State v.

Hacker, Ohio Slip Opinion No. 2023-Ohio-2535, __ N.E.3d __, the Supreme Court of Ohio

recently found the Reagan Tokes Law to be constitutional and held that the law does not

violate the separation-of-powers doctrine, the right to a jury trial, or the right to due

process. Id. at ¶ 25, 28, 29-41. We have consistently reached the same conclusion.

See State v. Leamman, 2d Dist. Champaign Nos. 2021-CA-30 and 2021-CA-35, 2022-

Ohio-2057, ¶ 11 (finding that the Reagan Tokes Law is not violative of due process, trial

by jury, or the separation of powers doctrine and citing several Second District cases

rejecting constitutional challenges); State v. Dennison, 2d Dist. Champaign No. 2021-CA- -51-

42, 2022-Ohio-1961, ¶ 15-22 (finding that the Reagan Tokes Law does not violate a

defendant's statutory rights to appeal, right to trial by jury, right to counsel, due process

rights, or the separations of powers doctrine).

{¶ 115} Based on the foregoing case precedent, and because Debord has not

presented any novel issues or any new theory challenging the constitutional validity of the

Reagan Tokes Law left unaddressed by the Supreme Court in Hacker, his sixth

assignment of error is overruled.

Conclusion

{¶ 116} Having overruled all of Debord’s assignments of error, his judgment of

conviction is hereby affirmed.

TUCKER, J. and LEWIS, J., concur.