[Cite as State v. Haymon, 2026-Ohio-2614.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 115862 v. :
REGINALD HAYMON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 9, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-697778-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney, for appellee.
Flowers & Grube, and Louis E. Grube and Michael J. Factor, for appellant.
EILEEN A. GALLAGHER, J.:
Reginald Haymon (“Haymon”) appeals his convictions for various
felony offenses and the associated prison sentence. For the following reasons, we
affirm the trial court’s judgment. I. Facts and Procedural History
On December 12, 2024, Haymon was charged in a 12-count indictment
alleging that he sexually assaulted S.G. between June 1, 2014 and May 31, 2015,
when she was a minor, and on November 12, 2023, when she was an adult.
Haymon’s case proceeded to a jury trial and the jury found Haymon guilty of three
counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A),
third-degree felonies; felonious assault in violation of R.C. 2903.11(A)(1), a second-
degree felony; strangulation in violation of R.C. 2903.18(B)(1), a second-degree
felony; strangulation in violation of R.C. 2903.18(B)(2), a third-degree felony;
aggravated menacing in violation of R.C. 2903.21(A), a first-degree misdemeanor;
and felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, with
firearm specifications. The jury found Haymon not guilty of the remaining four
counts in the indictment.
Haymon was sentenced to an aggregate of 16-20 years in prison.
Specifically relevant to this appeal, the court ran the following prison sentences
consecutively: eight-to-12-years for the felonious assault in violation of R.C.
2903.11(A)(2); three years for the accompanying firearm specification; and five
years for one count of unlawful sexual conduct with a minor.
Haymon appeals and raises the following assignments of error for our
review:
I. Trial counsel was constitutionally ineffective by failing to make a challenge for cause to juror number three, who was close personal friends with the elected prosecutor. II. The trial court committed plain error by permitting jurors to see a firearm not utilized in any alleged offense.
III. The trial court committed plain error by imposing consecutive sentences that are disproportionate to the de minimus danger Haymon poses to the public.
II. Law and Analysis
A. Ineffective Assistance of Counsel
1. Standard of Review
In his first assignment of error, Haymon argues that this court should
adopt and apply a “softer” standard of review for ineffective assistance of counsel
than the one Ohio courts currently use. Specifically, Haymon asks this court to apply
the test from State v. Hester, 45 Ohio St.2d 71 (1976), rather than the currently used
test articulated in Strickland v. Washington, 466 U.S. 668 (1984), which was
adopted by the Ohio Supreme Court in State v. Bradley, 42 Ohio St.3d 136 (1989).
Haymon additionally argues that his counsel was “constitutionally ineffective” when
he “failed to seek removal for cause of [a juror who was] a close personal friend of
Cuyahoga County’s elected prosecutor.” According to Haymon, the Hester test
should be used because this juror’s “close personal history with the elected
prosecutor takes this case out of the typical legal framework, where some reasonable
possibility of a different outcome must be demonstrated.”
a. The Current Test Under Strickland and Bradley
To succeed on a claim of ineffective assistance of counsel, a defendant
must establish that his or her attorney’s performance was deficient and that the
defendant was prejudiced by the deficient performance. Strickland. However, “a court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not to grade counsel’s
performance.” Id. at 697. “[T]o show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial
would have been different.” Bradley at 143.
b. The Hester Test
In Hester, the Ohio Supreme Court recognized “that an appellant may
present for determination the claim of ineffective retained counsel” in addition to
ineffective appointed counsel. Id. at 76. The Hester Court also determined that “the
effectiveness of representation by both retained and appointed counsel must be
gauged by the same standard.” Id. at 79. That standard is articulated in Hester as
follows: “Balancing the rights of the accused and of the public, we hold the test to
be whether the accused, under all the circumstances, including the fact that he had
retained counsel, had a fair trial and substantial justice was done.” Id.
In State v. Lytle, 48 Ohio St.2d 391 (1976), vacated in part on other
grounds, 438 U.S. 910 (1978), and State v. Calhoun, 86 Ohio St.3d 279 (1999), the
Ohio Supreme Court held that when applying the Hester test, “a two-step process is
usually employed.” Calhoun at 289. “First, there must be a determination as to
whether there has been a substantial violation of any of defense counsel’s essential
duties to his client. Next, and analytically separate from the question of whether the defendant’s Sixth Amendment rights were violated, there must be a determination
as to whether the defense was prejudiced by counsel’s ineffectiveness.” Lytle at 396-
397. This two-step process is essentially the same as the Strickland and Bradley
test. See State v. Smith, 17 Ohio St.3d 98, 100 (1985) (“The test enunciated in
Strickland is essentially the same as the one we adopted in State v. Hester . . . and
State v. Lytle . . . .”). In other words, contrary to Haymon’s argument, the Hester
test is not an alternative to the current ineffective-assistance-of-counsel standard
used by Ohio courts today.
Accordingly, we must follow Ohio Supreme Court precedent and apply
the same ineffective-assistance-of-counsel standard we have been applying since at
least 1989 when Bradley was released.
2. Juror Challenges
A fair trial requires impartial jurors. State v. Clinton, 2017-Ohio-
9423, ¶ 88. Challenging jurors for cause is governed by R.C. 2313.17, 2945.25 and
Crim.R. 24(C). Pertinent to Haymon’s argument on appeal, R.C. 2313.17(B) lists
“good causes for challenge to any person called as a juror . . .” and Section (9) states
as follows: “That the person discloses by the person’s answers that the person
cannot be a fair and impartial juror or will not follow the law as given to the person
by the court.” Challenges under R.C. 2313.17(B)(9) are referred to as “challenges to
the favor” and are within the court’s discretion. See State v. Swift, 2014-Ohio-4041,
¶ 4 (9th Dist.), citing Hall v. Banc One Mgmt. Corp., 2007-Ohio-4640, ¶ 30-33
(analyzing former R.C. 2313.42(J), which is now R.C. 2313.17(B)(9)). Furthermore, R.C. 2313.17(D) states as follows: “In addition to the
causes listed in division (B) of this section, any petit juror may be challenged on
suspicion of prejudice against or partiality for either party . . . or other cause that
may render the juror at the time an unsuitable juror.” R.C. 2945.25(B) and Crim.R.
24(C)(9) permit challenges if the prospective juror “is possessed of a state of mind
evincing enmity or bias toward the defendant or the state . . . .” Additionally, R.C.
2945.25(O) and Crim.R. 24(C)(14) permit challenges if the person is “otherwise
unsuitable for any other cause to serve as a juror.”
3. Analysis
On appeal, Haymon argues that “defense counsel should have lodged
a challenge to Juror Number Three based upon concerns of personal affinity toward,
and therefore, bias in favor of, the State’s primary attorney in the County.”
Specifically, Haymon bases his argument on the following colloquy between juror
No. 3 and the court:
THE COURT: So is there anyone who doesn’t feel that they can be fair and impartial for any reason at this time, having heard about the case?
...
JUROR NO. 3: Your Honor, with all due respect to yourself to this courtroom fellow jurors, I was born and raised Catholic and at John Carroll University. I don’t believe in the death penalty. So if I have to cast a vote regarding that, I can’t do it, just based on my faith. I’m just being honest with you.
THE COURT: Got that. This is not a death penalty case.
JUROR NO. 3: Okay, very good. THE COURT: You’ll be okay?
JUROR NO. 3: Okay.
THE COURT: And do you know any lawyers?
JUROR NO. 3: I do.
THE COURT: Anybody who does criminal defense work or prosecutor[] work?
JUROR NO. 3: I do. Mike O’Malley1 is a personal friend of mine. We wrestled at John Carroll together.
THE COURT: The prosecutor?
JUROR NO. 3: Correct. He had more hair.
THE COURT: Yeah, the guy with the good hair. So you went to Carroll with him?
JUROR NO. 3: Yes.
THE COURT: Did he wrestle?
JUROR NO. 3: He did. He and I wrestled there.
The Ohio Supreme Court has held that a “juror is permitted to serve
so long as her relationship to a person in the case is distant and casual, rather than
close and ongoing.” State v. Beasley, 2018-Ohio-493, ¶ 128. Furthermore, to satisfy
the test for ineffective assistance of counsel based on the failure to question or strike
a particular prospective juror because of partiality or bias, Haymon must prove that
1 We take judicial notice that Michael C. O’Malley is the elected Cuyahoga County
Prosecutor who was first sworn into office in January 2017 and was reelected in November 2024. There is no indication in the record that O’Malley was personally involved in Haymon’s trial. See https://www.ccprosecutor.us/who-we-are/meet-the-prosecutor/ (last visited June 24, 2026). the juror was not “capable and willing to decide the case solely on the evidence . . . .”
Smith v. Phillips, 455 U.S. 209, 217 (1982).
Our review of the voir dire in this case shows that the court asked all
jurors if they did not “feel that they can be fair and impartial” prior to Haymon’s
trial. Juror No. 3 replied that he would be unable to vote in favor of the death penalty
due to his faith. The court assured juror No. 3 that this was not a death penalty case
and asked him if he would “be okay.” Juror No. 3 responded, “Okay.” The court
then asked juror No. 3 if he knew “[a]nybody who does criminal defense work or
prosecutor[] work.” Juror No. 3 related to the court that Cuyahoga County
Prosecutor Michael C. O’Malley was a “personal friend” of his. Juror No. 3 did not
mention anything about O’Malley when asked if he could be fair and impartial.
As stated previously, when reviewing a claim for ineffective assistance
of counsel, we apply a two-pronged test. First, whether counsel’s performance was
deficient, and second, whether the defendant was prejudiced by the deficient
performance. Focusing on the second prong regarding prejudice, Haymon argues
that juror No. 3’s “close personal history with the elected prosecutor takes this case
out of the typical legal framework, where some reasonable possibility of a different
outcome must be demonstrated.”2 While Haymon concedes that there is no
2 We note that Haymon’s first assignment of error alleges juror No. 3 and O’Malley
were “close personal friends.” However, juror No. 3 stated in open court that O’Malley was a “personal friend” of his. Not to put too fine a point on it, but Beasley, cited above, draws a distinction between “distant and casual” relationships and “close and ongoing” relationships. It is noteworthy that juror No. 3 did not say that O’Malley was a close personal friend of his. evidence of how juror No. 3 deliberated, thus there is no evidence of actual bias, he
nonetheless argues that “[s]uch a lack of confidence in the outcome is all that is
required to demonstrate prejudice under Strickland.” The law, however, says
otherwise.
In State v. Rogers, 2025-Ohio-4794, ¶ 28, the Ohio Supreme Court
noted that “the United States Supreme Court has never held that Strickland
prejudice should be presumed based on the presence of a biased juror . . . .” Quite
the opposite, the Ohio Supreme Court held the following: “When a defendant bases
an ineffective-assistance claim on an assertion that his counsel allowed the
impanelment of a biased juror, the defendant ‘must show that the juror was actually
biased against him.’” (Emphasis in original.) State v. Mundt, 2007-Ohio-4836,
¶ 67, quoting Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001). The Rogers Court
reasoned that “prospective jurors are presumed impartial, so it is incumbent on the
party challenging the empanelment of a juror to overcome that presumption to
establish bias.” Id. at ¶ 33.
The actual-bias standard for presuming prejudice necessarily means that when the voir dire record demonstrates only a possibility or a potential that a juror was biased, prejudice may not be presumed. Thus, when the voir dire transcript indicates statements that suggest potential bias but fall short of demonstrating actual bias, and counsel neglected to follow up on such statements, prejudice cannot be presumed.
Id. at ¶ 37.
In State v. Cooper, 2006-Ohio-869, ¶ 14 (11th Dist.), the court was
presented with a factual situation similar to the one in this case, except that in Cooper not one, but three, prospective jurors “were found to be acquaintances of the
prosecutor.” In fact, one of these jurors “had gone to school with the prosecutor for
about eleven years.” Id. The court concluded that “defense counsel is not required
to exercise . . . challenges to remove potential jurors merely because they are the
casual acquaintance of the prosecutor, particularly where, as in the present case,
there is no indication of bias as a result of the acquaintance.” Id. at ¶ 17.
In State v. Courie, 2015-Ohio-2894, ¶ 15 (11th Dist.), the court was
presented with the following facts:
During voir dire, [a potential juror] stated he and . . . the Ashtabula County Prosecutor are good friends, and . . . their daughters are college roommates. [This potential juror] and [the Ashtabula County Prosecutor] serve together on a board, and exchange weekly emails and communications regarding the board’s business. Nevertheless, he stated he could be fair and make his decisions based on the law and evidence. This case was not tried by the [the Ashtabula County Prosecutor] himself, but by [an] Assistant Prosecutor . . . .
Courie’s counsel challenged this potential juror for cause, and the
court denied the challenge. Id. Courie appealed, and the 11th District Court of
Appeals affirmed.
In this case, . . . Courie contends the close personal relationship between [the potential juror] and . . . the county prosecutor rendered the former suspect as a juror. We respectfully disagree. First, [the Ashtabula County Prosecutor] did not appear in this case, except through his assistant . . . .” There is nothing in the record indicating [the potential juror] knows [the assistant prosecutor]. Further, there is nothing in the record indicating [the potential juror’s] connection with [the Ashtabula County Prosecutor] has anything to do with the latter’s office. The record indicates it is personal and related to the board on which they serve together.
Id. at ¶ 27. Upon review, we conclude that Haymon cannot establish either prong
of the Strickland test nor can he demonstrate that juror No. 3 was actually biased
against him. The record reflects that juror No. 3 informed the court he could not be
impartial in a death penalty case, which has no bearing here. Juror No. 3 also
disclosed that he knew the elected prosecutor but did not indicate that this would
affect his ability to decide the case based solely on the evidence presented. Simply
put, there is no evidence that Haymon’s “counsel’s representation fell below an
objective standard of reasonableness,” there is no presumption of prejudice in this
case and there is no evidence that juror No. 3 was actually biased in favor of the
prosecution.
Accordingly, Haymon’s first assignment of error is overruled.
B. Admission of Evidence
1. The Photograph at Issue
In his second assignment of error, Haymon argues that showing the
jury a photograph of two handguns he owned, when only one of the guns was used
in the indicted offenses, was prejudicial error. According to the record, the
photograph at issue “was a still frame image from body camera footage depicting the
two firearms [Haymon] forfeited during the pendency of this case.” The two
handguns, one black and the other silver and black, are resting in a hard pistol
carrying case. Specifically, the following colloquy took place during S.G.’s
testimony: PROSECUTOR: You describe at some point [Haymon] went and got a gun. Are you aware — were you aware at that time that there were firearms in the house?
S.G.: Yes.
PROSECUTOR: How many?
S.G.: I knew him to have two.
PROSECUTOR: Would you recognize a photo of the firearm if I showed you?
S.G.: Yes, I would.
PROSECUTOR: I’m handing you what has been marked as State’s Exhibit 47. Do you see the guns depicted in that photo?
S.G.: Yes, I do.
PROSECUTOR: Do you recognize these as the firearms that were at the house?
PROSECUTOR: Whose firearm[s] were these?
S.G.: [Haymon]’s.
PROSECUTOR: Do you recall what firearms he retrieved on that day?
S.G.: Yes, it was the all black gun in the picture.
PROSECUTOR: Okay. So what happened when he gets his gun?
S.G.: He goes and gets it, and when I see him with the gun, I curl up into a ball on the kitchen floor, and I just cover my head. And I just I wait until like — then I heard the gunshot. And then I opened my eyes, and I was still alive. 2. Standard of Review
Defense counsel did not object to the photograph’s introduction into
evidence at trial, therefore, we review this argument for plain error. “Plain errors or
defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.” Crim.R. 52(B). “To prevail under a plain-error
analysis, the appellant bears the burden of demonstrating, but for the error, the
outcome of the trial court proceeding would have been different.” State v. Clark,
2026-Ohio-1286, ¶ 7 (8th Dist.). Additionally, the Ohio Supreme Court has long
held that “[n]otice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 97 (1978).
3. Law
Generally, relevant evidence is admissible at trial. Evid.R. 402.
Relevant evidence “means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Evid.R. 401. However,
pursuant to Evid.R. 403(A), 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.” Additionally, pursuant to Evid.R. 403(B),
relevant evidence “may be excluded if its probative value is substantially outweighed
by considerations of undue delay, or needless presentation of cumulative evidence.”
Furthermore, pursuant to Evid.R. 404(B)(1), “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
On appeal, Haymon argues that the second gun in the photograph was
inadmissible “other weapons evidence,” which is prohibited pursuant to Evid.R.
404(B). Haymon further argues that this evidence was inadmissible under Evid.R.
403(A), because the “unfair prejudice from this evidence far outweighs its utility
given the other evidence the State could and did use to demonstrate Haymon had
and fired a weapon.”
The State, on the other hand, argues that the photograph does not
amount to other acts evidence under Evid.R. 404(B). According to the State,
Haymon “stated he was a lawful gun owner, as he had his CCW, and that he used a
gun that day. Therefore, lawfully possessing another firearm cannot be considered
an ‘other act’ or ‘bad act’ under Evid.R. 404(B).”3 The State further argues that, even
if the photograph was inadmissible, this does not amount to plain error because “in
light of the overwhelming testimony regarding the November 12, 2023 incident that
the introduction of” the photograph did not affect the outcome of trial.
In State v. Thomas, 2017-Ohio-8011, the Ohio Supreme Court
explained that other weapons evidence is “irrelevant evidence of weapons unrelated
to the charges” at issue. Id. at ¶ 36. In Thomas, the victim died “from blood loss
caused by a stab wound to her neck that severed her right carotid artery and right
3 “CCW” is neither defined nor explained in Haymon’s trial transcript or any of the
appellate briefing. jugular vein.” Id. at ¶ 13. The victim’s autopsy revealed that “the stab wounds . . .
were caused by a single-edged knife with a blunt edge of 1/16th of an inch.” Id. at
¶ 14. The murder weapon in Thomas was never recovered. Id. at ¶ 46.
Ultimately, police arrested Thomas for the murder in question and
seized five knives from his residence and his ex-girlfriend’s residence. Id. at ¶ 25.
The State presented these five knives to the jury at Thomas’ trial and described them
as “full Rambo combat knives.” Id. at ¶ 48. Again, it was undisputed that “none of
these knives had anything to do with [the victim’s] murder.” Id.
The Thomas Court found that “the trial court committed prejudicial
error by admitting evidence of five knives that the state knew were not used in
connection with [the victim’s] murder . . . with the intent to have the jury infer that
Thomas is a dangerous person of violent character.” Id. at ¶ 45. The court further
concluded that “[t]his evidence was not only inadmissible but also highly prejudicial,
and there is a reasonable probability that trial court’s error in admitting it affected
the outcome of the trial.” Id. at ¶ 48.
4. Analysis
Upon review, we find Haymon’s case to be different than Thomas,
because here, one of the guns in the photograph was used in the offenses with which
Haymon was charged. In this case, the evidence in question is a photograph of two
guns in one carrying case that belonged to Haymon, and S.G. identified one of the
guns as the gun Haymon brandished and fired on November 12, 2023. Additionally, Haymon testified that he brandished a gun and it fired on
November 12, 2023, when he was in the kitchen of his house with S.G.
So I’m thinking I have my CCW and everything. I’m thinking that, okay, if I tell her that my gun is on me, maybe she won’t try to jump on me, tap on me anymore, or do any of that.
So I come out and do this, I’m like, “I have my gun on me.”
I lift my shirt up, I show her.
And I smacked myself like that. I hit my trigger and I almost shot me in the foot. If anyone know about a hairline trigger, know if you tap it like this, that it would go off. It went off into the ground.
We find this case to be more similar to State v. Graham, 2020-Ohio-
6700. In Graham, one of the victims was fatally shot in the chest during a planned
robbery. Id. at ¶ 2. The two surviving victims and three codefendants testified
against Graham in his aggravated murder trial. Id. On appeal, Graham challenged
the admission at trial of “a photograph of Graham holding two handguns” as being
in violation of Evid.R. 404(B). Id. at ¶ 64. Graham failed to object to the admission
of this photograph at trial and waived all but plain error. Id.
The Graham Court stated that the proper analysis to review the
admissibility of this photograph was found in State v. Williams, 2012-Ohio-5695,
¶ 20:
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R 403.
In Graham, the court held that the two guns Graham was holding in
the photograph “may have been the two handguns used in the crimes” at issue. Id.
at ¶ 82. The court concluded “that the photo had some relevance and satisfies the
first part of the Williams test.” Id. at ¶ 83.
As to the second prong of the Williams test, the Graham Court chose
not to follow Thomas. “But unlike in Thomas, in this case, the state sought to prove
that the handguns in the photo were the same handguns used during the robbery
and murder. Thus, Graham’s reliance on Thomas is misplaced.” Id., 2020-Ohio-
6700 at ¶ 86. Nonetheless, the Graham Court found that the photograph “was
introduced to suggest that Graham has a propensity for gun violence and to imply
that he acted in conformity with that character on the day of the crimes at issue. We
hold that the photo fails the second part of the Williams test.” Id. at ¶ 90.
The Graham Court further concluded that “the photo fails the third
part of the Williams test, because the probative value of the photo was substantially
outweighed by the danger of unfair prejudice.” Id. at ¶ 91.
After finding that the photograph was improperly admitted at
Graham’s trial, the court concluded that “Graham cannot meet his burden to prove
that . . . the introduction of the photo prejudiced him by affecting the outcome of the trial, in light of the remaining evidence of Graham’s guilt.” Id. at ¶ 93. In other
words, the court found harmless error and affirmed Graham’s convictions. Id. at
¶ 217.
In applying the three-part Williams test to this case, we find the
following. First, the photograph is relevant because S.G. identified the all-black gun
as the gun Haymon used in the offenses at issue.
Second, the State argues that “the fact that [Haymon] had access to
firearms and used a firearm to shoot at [S.G.] is direct evidence of the [f]elonious
[a]ssault.” We agree with the State that the all-black gun that S.G. testified Haymon
possessed, brandished and fired on November 12, 2023, is direct evidence of the
offenses alleged in this case. Additionally, Haymon testified to legally owning a gun
and brandishing it that day. Haymon also testified that this gun fired on the day in
question.
However, we disagree with the State concerning the second gun in the
photograph — namely the black and silver gun that has no apparent connection to
this case. There was simply no legitimate reason to show the jury a picture of two
guns when Haymon used only one. In fact, a careful reading of the State’s appellate
brief in this case reveals that it offers no legitimate purpose to show a picture of two
guns rather than one gun. Therefore, the photograph of the irrelevant gun was
necessarily used to show Haymon’s character and “activity in conformity therewith”
under the Williams test. Third, similar to Graham, we find that the photograph was more
prejudicial than probative. The picture was probative because it showed the gun
Haymon admitted to using in the offenses at issue. However, it was more prejudicial
than probative because it unnecessarily showed more than one gun for the purpose
of showing Haymon’s bad character. Upon review, we find that the photograph was
improperly admitted at Haymon’s trial because it fails the second and third prongs
of the Williams test.
Again, because Haymon did not object to this issue at trial, we turn to
whether the admission of this evidence amounted to plain error. Upon review, we
find that Haymon failed to show that the photograph prejudicially affected the
outcome of trial. S.G.’s testimony that Haymon possessed, brandished and fired a
gun that day, coupled with Haymon’s admission that he possessed and brandished
a gun that fired that day, is more than enough to convict Haymon of felonious assault
by means of a deadly weapon, with firearm specifications. Furthermore, S.G.
testified in detail about the allegations against Haymon, and the jury acquitted him
of some of the offenses and convicted him of some of the offenses. See, e.g., State v.
Middlesworth, 2006-Ohio-12, ¶ 6 (9th Dist.) (“Because the jury convicted [the
defendant] on some counts . . . but acquitted him on . . . other counts, we reasonably
conclude that the jury was able to distinguish the credible testimony from the
incredible and decide accordingly.”). Simply put, the jury believed S.G.’s testimony
rather than Haymon’s testimony regarding the majority of the State’s allegations in
this case. Accordingly, we find no plain error in the admission of the
photograph, and Haymon’s second assignment of error is overruled.
It is, however, inexplicable as to why the State introduced the
photograph, at all. They were in possession of the firearm at issue but chose not to
present it as an exhibit at trial. According to the assistant prosecuting attorney who
argued the case before this court and, admittedly, was trial counsel for the State,
“they” did not want to upset the victim/witness by presenting her with the firearm
for identification. It is a nonsensical explanation although, again, we find it to be
harmless error.
C. Consecutive Prison Sentences
Pursuant to R.C. 2953.08(G)(2), an appellate court’s standard when
reviewing felony sentences is not whether the trial court abused its discretion.
Rather, if this court “clearly and convincingly” finds that 1) “the record does not
support the sentencing court’s findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20” or
2) “the sentence is otherwise contrary to law,” then we may conclude that the court
erred in sentencing. Id. See also State v. Marcum, 2016-Ohio-1002 (explaining
R.C. 2953.08(G)(2)’s standard of review for felony sentencing).
“[T]o impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry . . . .” State v. Bonnell,
2014-Ohio-3177, ¶ 37. Under R.C. 2929.14(C)(4), the court must find consecutive sentences are “necessary to protect the public from future crime or to punish the
offender”; “not disproportionate to the seriousness of the offender’s conduct and to
the danger the offender poses to the public”; and at least one of the following three
factors:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction . . . or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offenders conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Our review of Haymon’s sentencing hearing transcript shows that the
court ordered consecutive sentences after finding that they were “necessary to
punish [Haymon] for [his] course of conduct here. A 16-year base count for this 10-
year string of behavior is not disproportionate to the seriousness of [his] conduct
and to the danger that [he] pose[s] to [S.G.], a member of the public.” The court
further found that, under R.C. 2929.14(C)(4)(b), “the harm caused by the multiple
offenses [was] so great or unusual that no single prison terms for any of the offenses
committed as part of the course of conduct adequately reflects the seriousness of
[his] conduct.”
On appeal, Haymon argues that, under R.C. 2929.14(C)(4), he
“presents no real danger to the public” and, therefore, consecutive sentences are “disproportionate to any such risk in this case.” Haymon argues that the court’s
finding that he poses a danger to S.G. does not demonstrate that he poses a danger
to the public.
In State v. Banks, 2023-Ohio-4655, ¶ 14 (8th Dist.), this court
explained that the proportionality finding in R.C. 2929.14(C)(4) is two-pronged.
“While a word-for-word recitation of the language of the statute is not necessary, the
proportionality finding is stated as a conjunctive phrase and the trial court is
required to consider the proportionality of the sentence regarding both the
seriousness of the offender’s conduct and the danger the offender poses to the
public.” (Emphasis in original.) Id. In Banks, this court found that the trial court
failed to make the second proportionality finding and concluded that we were
“unable to discern that the trial court engaged in the correct analysis . . . .” Id. at
¶ 15. Our review of Banks shows that the trial court failed to even mention the
second proportionality finding at all.
In this case, the court found that consecutive sentences were “not
disproportionate to . . . the danger that [Haymon] pose[s] to [S.G.], a member of the
public.” Contrary to Haymon’s arguments, the trial court did not omit this finding.
Rather, it made the finding without using a verbatim recitation of the statute. Upon
review, we find that this is not deficient because it demonstrates that the court
considered this criteria, and we are able to discern that the court engaged in the
correct analysis. Furthermore, the trial court’s finding that consecutive sentences are
not disproportionate to the danger Haymon poses to the public is supported by the
evidence in the record. Specifically, the court found that: “You groomed this woman
from a very sensitive, young age who was not just an impressionable, young person
but an impressionable, young person without the benefit of strong family ties. And
you continued to use her for your benefit throughout her young life, and as such you
deserve consecutive time.” See State v. Jackson, 2015-Ohio-1023, ¶ 12 (8th Dist.)
(affirming consecutive sentences because the offender posed a danger to the public
when the evidence showed he “groomed and preyed on his own biological daughter
for his own sexual gratification over a very extended period of time . . .”); State v.
Mitchell, 2017-Ohio-6888, ¶ 12-13 (8th Dist.) (affirming consecutive sentences
because the offender posed a danger to the public when the evidence showed he took
“advantage of his position of spiritual authority and the victim’s faith in God, [and]
manipulated and groomed the victim for his own sexual gratification”).
Accordingly, Haymon’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________ EILEEN A. GALLAGHER, JUDGE
MICHAEL JOHN RYAN, P.J., CONCURS; KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY