State v. Hardman
Opinion
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105810
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEAFRED C. HARDMAN,
A.K.A. DEALFRED HARDMAN
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-14-585663-B
Application for Reopening Motion No. 520302
RELEASE DATE: December 17, 2018
FOR APPELLANT
Deafred Hardman, a.k.a. Dealfred Hardman, pro se Inmate No. 663624 Oriana House, Inc. P.O. Box 1501 Akron, Ohio 44309
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
MELODY J. STEWART, J.:
{¶1} Deafred C. Hardman, a.k.a. Dealfred Hardman, has filed a timely application for reopening pursuant to App.R. 26(B). Hardman is attempting to reopen the appellate judgment, rendered in State v. Hardman, 8th Dist. Cuyahoga No. 105810, 2018-Ohio-2062, that affirmed his convictions for the offenses of compelling prostitution (R.C. 2907.21(A)(2)(a)) and unlawful sexual conduct with a minor (2907.04(A)). We decline to reopen Hardman’s original appeal.
I. Standard of Review Applicable to App.R. 26(B) Application for Reopening
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Hardman is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).
{¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an attorney’s work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland.
II. State’s Failure to Provide Discovery
{¶4} Hardman has raised three proposed assignments of error in support of his application for reopening. Hardman’s first proposed assignment of error is that:
The state committed prosecutorial misconduct by deliberately violating appellant’s [rights under] 5th, 6th, and 14th Amendments of the U.S. Constitution and admitting inadmissable hearsay evidence to the jury only to withdraw that evidence once inadmissable hearsay testimony had been elicited regarding the same.
{¶5} Hardman, through his initial assignment of error, argues that appellate counsel was ineffective by not challenging the state’s failure to provide his dental records during discovery. Specifically, Hardman argues that the state was prohibited from introducing his dental records at the retrial because the prosecution had promised not to introduce any exhibits from the original trial.
{¶6} The Supreme Court of Ohio, in O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.3d 803, reaffirmed the application of the doctrine of res judicata and held that:
The doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also known as collateral estoppel. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226. Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action. Fort Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d 392, 395, 1998-Ohio-435, 692 N.E.2d 140. Where a claim could have been litigated in the previous suit, claim preclusion also bars subsequent actions on that matter. Grava, 73 Ohio St.3d at 382, 653 N.E.2d 226.
Issue preclusion, on the other hand, serves to prevent relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action between the same parties or their privies. Fort Frye, 81 Ohio St.3d at 395, 692 N.E.2d 140. Issue preclusion applies even if the causes of action differ. Id.
O’Nesti, supra, at ¶ 6.
{¶7} Herein, Hardman has already attempted to litigate the claim that the state was precluded from introducing any exhibits at the second trial that had been previously admitted into evidence during the course of the original trial.
During the first trial, Hardman introduced his own dental records into evidence without objection from the state. During retrial, a police detective testified that a telephone number given in conjunction with the ad for the victim’s escort services was the same number appearing on Hardman’s dental records. Hardman claims that the records were inadmissible because the state did not disclose those dental records to him in pretrial discovery and the state reneged on its representation to the court that it would not introduce any exhibits from the first trial.
The state did not promise that it would not introduce any exhibits from the first trial. As part of his motion in limine, Hardman asked that the state be precluded from introducing his testimony from the first trial because he would not be testifying in the second trial. The state told the court that it “does not have any intention of introducing any past testimony in its case in chief.” At no point did the state agree not to introduce any exhibits that were admitted at the first trial.
Indeed, an agreement to that effect would have doomed the state’s case — it would have prohibited the state from introducing the ad for escort services, a crucial piece of evidence.
Hardman’s claim that the state did not produce the dental records in discovery is equally without merit. The point of pretrial discovery is to prevent unfair surprise.
State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978). Not only did the dental records belong to Hardman, he introduced them in the first trial. We are hard-pressed to understand how Hardman would have been surprised that the state used them in the second trial.
Hardman, supra, at ¶ 18.
{¶8} The doctrine of res judicata bars Hardman from once again raising the issue of the improper admission into evidence of his dental records because the issue was previously adjudicated before this court on appeal. Hardman has failed to establish any prejudice through his first proposed assignment of error.
III. Failure of State to Authenticate Record
{¶9} Hardman’s second proposed assignment of error is that:
The trial court erred when it overruled appellant’s motion in limine and objection to state exhibit (2) the Backpage advertisement as it violated Evid.R. 902, 403(A), R.C. 2921.12, R.C. 2945.82 and Evid.R. 1003.
{¶10} Hardman, through his second proposed assignment of error, states his appellate counsel was ineffective on appeal by failing to argue that a Backpage.com advertisement, introduced by the state at trial as state’s exhibit No. 2, was not properly authenticated.
{¶11} Evid.R. 901(A) deals with the authentication of evidence prior to admission at trial.
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