State v. Jacobs

2013 Ohio 1502

• Court: Ohio Court of Appeals
• Decided: March 28, 2013
• Docket: 11CA26
• Status: Published

Opinion

[Cite as State v. Jacobs, 2013-Ohio-1502.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 11CA26 : vs. : : DECISION AND JUDGMENT JIMMIE E. JACOBS, : ENTRY : Defendant-Appellant. : RELEASED: 03/28/13 _____________________________________________________________ APPEARANCES:

William R. Gallagher, Arenstein and Gallagher, Cincinnati, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee. _____________________________________________________________

McFarland, P.J.

{¶1} Appellant, Jimmie Jacobs, appeals the conviction and sentence

entered against him by the Highland County Court of Common Pleas after a

jury found him guilty of aggravated burglary and felonious assault, along

with two firearm specifications. On appeal, Appellant contends that 1) the

trial court erred in admitting into evidence his statements made after he had

invoked his right to counsel; 2) the trial court erred in limiting his cross

examination of the complaining witness thereby denying him his

constitutional right of confrontation; 3) the trial court erred in refusing to Highland App. No. 11CA26 2

permit a witness to testify to his opinion as to truthfulness of a government

witness thus depriving defendant of his right to a fair trial and compulsory

process; 4) the trial court erred by refusing to admit evidence of a witness’s

drug use and mental illness thus depriving defendant of his right to a fair

trial and compulsory process; 5) the trial court erred in entering judgments

of conviction and sentences on both felonious assault and aggravated

burglary in this case as they are allied offenses in violation of R.C. 2941.25

and the double jeopardy clause prohibitions against multiple punishments; 6)

the trial court erred in entering consecutive sentences on the gun

specifications from a single transaction.

{¶2}With regard to Appellant’s first assignment of error, we conclude

Appellant knowingly and intelligently waived his rights when he re-initiated

conversation with law enforcement. As such, the trial court did not err in

denying Appellant’s motion to suppress, nor did it err in admitting his

statements into evidence at trial. Thus, Appellant’s first assignment of error

is overruled.

{¶3}As to Appellant’s second and fourth assignments of error,

because we find no abuse of discretion on the part of the trial court in

excluding the evidence at issue, we find no merit to these assignments of

error and they are both overruled. Likewise, as to Appellant’s third Highland App. No. 11CA26 3

assignment of error, we conclude that the officer’s proffered testimony was

an impermissible attempt to introduce character evidence via extrinsic

evidence, which is barred by Evid.R. 404 and 405, and which did not meet

the requirements for admission under Evid.R. 608(B). Thus, we cannot

conclude that the trial court erred in excluding this testimony at trial. As

such, Appellant’s third assignment of error is overruled.

{¶4}With regard to Appellant’s fifth assignment of error, we have

concluded that aggravated burglary and felonious assault are allied offenses

of similar import which should have merged for purposes of sentencing. As

such, this matter is remanded for resentencing, at which the State must elect

which offense it wishes to proceed upon for sentencing and conviction.

Therefore, Appellant’s fifth assignment of error is sustained. Finally, in

light of our finding that aggravated burglary and felonious assault are allied

offenses of similar import, and as such that Appellant could only be

convicted for one of the offenses, the trial court erred in imposing

consecutive three year sentences for each of Appellant’s firearm

specifications, under R.C. 2929.14(D)(1)(g). Accordingly, Appellant’s sixth

assignment of error is sustained and this matter is remanded for resentencing

with respect to the imposition of the firearm specification. Highland App. No. 11CA26 4

{¶5}In light of the foregoing, the decision of the trial court convicting

and sentencing Appellant for both aggravated burglary and felonious assault,

is reversed, and this matter is remanded for resentencing.

FACTS

{¶6}On December 15, 2010, Appellant, Jimmie Jacobs, was arrested

in connection with the shooting of victim, Jonathan Harris, at Harris’

apartment located in the back of J&J Automotive in Highland County, Ohio.

Upon being questioned by Patrolman Jeff Murphy and Detective Ron Priest

with the Hillsboro Police Department while in an interview room at the

Highland County Justice Center, Appellant confessed to having entered the

victim’s residence and shooting him with a .357 chrome revolver.1

{¶7}As a result, on March 1, 2011, Appellant was indicted on

attempted murder, in violation of R.C. 2923.02(A) and 2903.02(B),

felonious assault, a second degree felony in violation of R.C. 2903.11(A)(2),

and aggravated burglary, a first degree felony in violation of R.C.

2911.11(A)(1). Additionally, Appellant was charged with firearm

specifications pursuant to R.C. 2941.145 on each charge. Appellant pled not

guilty to the charges and the matter proceeded to trial.

1 The video and audio recording system in the interview room was not activated during the interview, unbeknownst to the investigating officers. As such, this information comes from testimony of the officers, based upon notes they made soon after the interview took place. Highland App. No. 11CA26 5

{¶8}Several pre-trial motions were filed, including a motion to

suppress by the defense and a motion in limine by the State. The trial court

overruled the defense’s motion to suppress, which sought suppression of the

statements made by Appellant during his interview with Murphy and Priest

on the night of the shooting. The trial court, however, granted the State’s

motion in limine. In particular, the trial court ruled that information

involving a loan made between Appellant and victim was to be limited, and

that there was to be no testimony or evidence presented as to how the victim

used the money. The trial court further ruled that the defense could not offer

testimony of a Xenia police officer related to a prior incident with the

victim.

{¶9}The matter was tried to a jury on August 31, and September 1,

2011. The State presented multiple witnesses in support of its case. Of

importance, the victim, Jonathan Harris, testified that Appellant, a neighbor

of Harris’, entered Harris’ residence located in the back of J&J Automotive

on the evening of December 15, 2010. Harris testified that Appellant had a

gun in his hand, stated he was going to kill Harris, put the gun to his head

and then pulled the trigger. Mark Puckett, a neighbor who knows both

Harris and Appellant, testified that he was on the phone with Harris when

Appellant entered the residence and that he heard Harris call Appellant by Highland App. No. 11CA26 6

name and then heard two shots. Further, Brian Holbrook, an employee of

J&J Automotive, testified that he saw Appellant enter the residence that

evening as Holbrook was leaving. He further testified that upon returning

not long after, he found Harris bloody and calling for help, and that he called

911.

{¶10}Patrolman Jeff Murphy and Detective Ron Priest, both with the

Hillsboro Police Department, testified regarding their interview of Appellant

at the Highland County Justice Center on the night of the shooting. Both

men essentially testified that Appellant stated that he had an issue with the

victim over money he had loaned him. They further testified that Appellant

stated that he went to the victim’s apartment and shot him with a .357

chrome revolver.

{¶11}Finally, the State presented the testimony of Heather Williams

and Max Larijani, employed at BCI&I. Larijani., who was qualified as an

expert in gunshot residue analysis, testified that there was gunshot primer

residue identified on samples taken from Appellant’s left back hand and the

palm of his right hand. Williams, who was qualified as an expert in

bullet/projectile analysis, testified that the evidence she tested indicated the

bullet fired had come from a .380 auto caliber or greater. She further

testified that a .357 caliber is greater than a .380 caliber. Highland App. No. 11CA26 7

{¶12}Additionally, the defense proffered one witness and presented

three, including Appellant himself. Appellant denied having confessed to

shooting Harris during the interview with law enforcement. Instead,

Appellant testified that he simply went to Harris’ apartment to confront him

in response to Harris making a threat against his wife. He testified that he

took a cane with him, which he used to walk. He further testified that he

entered Harris’ apartment after knocking and being told to come in. He

testified that Harris was on the phone with Mark Puckett and that while he

was still on the phone, Appellant leaned in close in order to be as threatening

as possible and to tell him that he could not make threats against his wife.

He further testified that when Harris reached for something behind his back,

Appellant hit Harris’ hand with his cane, that they both fell down and that he

then heard one shot. Finally, he testified that he left and went home because

he was frightened, and that he did not call the police.

{¶13}After hearing the evidence, the jury found Appellant guilty of

aggravated burglary and felonious assault. As such, the attempted murder

charge was nolled and dismissed, and the trial court sentenced Appellant to

eight years on each count, as well as three years on each firearm

specification, all to be served consecutively for a total prison term of twenty- Highland App. No. 11CA26 8

two years. It is from this judgment and sentence that Appellant now brings

his timely appeal, assigning the following errors for our review.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE STATEMENTS OF JACOBS AFTER HE HAD INVOKED HIS RIGHT TO COUNSEL WHICH VIOLATES HIS RIGHTS GUARANTEED HIM BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE OF THE OHIO CONSTITUTION.

II. THE TRIAL COURT ERRED IN LIMITING DEFENDANT’S CROSS EXAMINATION OF THE COMPLAINING WITNESS THEREBY DENYING HIM HIS CONSTITUTIONAL RIGHT OF CONFRONTATION AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.

III. THE TRIAL COURT ERRED IN REFUSING TO PERMIT A WITNESS TO TESTIFY TO HIS OPINION AS TO TRUTHFULNESS OF A GOVERNMENT WITNESS THUS DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND COMPULSORY PROCESS AS GUARANTEED BY THE OHIO AND FEDERAL CONSTITUTIONS.

IV. TRIAL COURT ERRED BY REFUSING TO ADMIT EVIDENCE OF A WITNESS’S DRUG USE AND MENTAL ILLNESS THUS DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR [SIC] AND A COMPULSORY PROCESS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.

V. THE TRIAL COURT ERRED IN ENTERING JUDGEMENTS [SIC] OF CONVICTION AND SENTENCES ON BOTH FELONIOUS ASSAULT AND AGGRAVATED BURGLARY IN THIS CASE AS THEY ARE ALLIED OFFENSES IN VIOLATION OF ORC 2941.25 AND THE DOUBLE JEOPARDY CLAUSE PROHIBITIONS AGAINST MULTIPLE PUNISHMENTS SET FORTH IN OHIO STATE AND FEDERAL CONSTITUTION [SIC]. Highland App. No. 11CA26 9

VI. THE TRIAL COURT ERRED IN ENTERING CONSECUTIVE SENTENCES ON THE GUN SPECIFICATIONS FROM A SINGLE TRANSACTION.”

ASSIGNMENT OF ERROR I

{¶14}In his first assignment of error, Appellant contends that the trial

court erred in admitting into evidence statements that he made after he had

invoked his right to counsel. Appellant essentially argues that the trial court

erred in denying his pre-trial motion to suppress, and as such, allowing his

confession to be admitted at trial. Appellant further contends that the issue

presented is whether the police must stop asking questions beyond booking

questions once an arrestee requests counsel. The State responds by arguing

that Appellant initiated the discussion which led to his confession, thereby

waiving his previously invoked right to counsel and right to remain silent.

{¶15} “Appellate review of a motion to suppress presents a mixed

question of law and fact. When considering 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.” State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; 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 Highland App. No. 11CA26 10

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.” Burnside at ¶ 8; citing State v. McNamara, 124

Ohio App.3d 706, 707 N.E.2d 539 (4th Dist. 1997). See, also, State v.

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100.

Preliminarily, “[w]here factual issues are involved in determining a motion,

the court shall state its essential findings on the record.” Crim.R. 12(F).

{¶16}Prior to initiating a custodial interrogation, law enforcement

must “inform an accused ‘that he has the right to remain silent, that anything

he says can be used against him in a court of law, that he has the right to the

presence of an attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.’ ” State v. Ulery,

4th Dist. No. 07CA28, 2008-Ohio-2452, ¶ 7; quoting Miranda v. Arizona,

384 U.S. 436, 479, 86 S.Ct. 1602 (1966). Neither party in this case argues

that Appellant was not subject to a custodial interrogation or that there was

no need to have given him the Miranda warnings. Thus, no further analysis

is required on this issue.

{¶17}To use a statement made by the accused during a custodial

interrogation, the prosecution must show: “(1) the accused, prior to any Highland App. No. 11CA26 11

interrogation, was given the Miranda warnings; (2) at the receipt of the

warnings, or thereafter, the accused made ‘an express statement’ that he

desired to waive his Miranda constitutional rights; (3) the accused effected a

voluntary, knowing, and intelligent waiver of those rights.” State v.

Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976) (overruled on other

grounds), citing Miranda. However, contrary to the second prong in

Edwards, the Supreme Court recently held that the prosecution “does not

need to show that a waiver of Miranda rights was express. An ‘implicit

waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect's

statement into evidence.” Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct.

2250, 2261 (2010) (Citation omitted). “Where the prosecution shows that a

Miranda warning was given and that it was understood by the accused, an

accused's uncoerced statement establishes an implied waiver of the right to

remain silent.” Id. at 2262. That is because “the law can presume that an

individual who, with a full understanding of his or her rights, acts in a

manner inconsistent with their exercise has made a deliberate choice to

relinquish the protection those rights afford.” Id.

{¶18}When dealing with a claim that law enforcement continued to

interrogate the accused after he invoked his right to counsel, the first

question is “whether the accused actually invoked his right to counsel.” Highland App. No. 11CA26 12

Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490 (1984). “It is fundamental

that once a suspect invokes his right to counsel, all interrogation must

cease.” State v. Colquitt, 188 Ohio App.3d 509, 2010-Ohio-2210, 936

N.E.2d 76, ¶ 12, citing State v. Turvey, 84 Ohio App.3d 724, 732, 618

N.E.2d 214 (4th Dist. 1992); State v. Jobe, 6th Dist. No. L-07-1413, 2009-

Ohio-4066, ¶ 67. “Invocation of the Miranda right to counsel ‘requires, at a

minimum, some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney.’ ” Davis v. United

States, 512 U.S. 452, 459, 114 S.Ct. 2350 (1994); quoting McNeil v.

Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204 (1991). “But if a suspect

makes a reference to an attorney that is ambiguous or equivocal in that a

reasonable officer in light of the circumstances would have understood only

that the suspect might be invoking the right to counsel, [the Court's]

precedents do not require the cessation of questioning.” Id. “Rather, the

suspect must unambiguously request counsel.” Id. As the Supreme Court

observed, “ ‘a statement either is such an assertion of the right to counsel or

it is not.’ ” Id., quoting Smith v. Illinois (1984), 469 U.S. 91, 97-98, 105

S.Ct. 490 (1984).

{¶19}Second, if we find that the accused did invoke his right to

counsel, we “may admit his responses to further questioning only on finding Highland App. No. 11CA26 13

that he (a) initiated further discussions with the police, and (b) knowingly

and intelligently waived the right he had invoked.” Smith v. Illinois at 95;

citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981). “[A]n

accused * * * having expressed his desire to deal with the police only

through counsel, is not subject to further interrogation by the authorities

until counsel has been made available to him, unless the accused himself

initiates further communication, exchanges, or conversations with the

police.” Edwards at 484-485; See, also, State v. Van Hook, 39 Ohio St.3d

256, 530 N.E.2d 883 (1988). “[I]nquiries or statements, by either an accused

or a police officer, relating to routine incidents of the custodial relationship,

will not generally ‘initiate’ a conversation in the sense in which that word

was used in Edwards [v. Arizona].” Oregon v. Bradshaw (1983), 462 U.S.

1039, 1045, 103 S.Ct. 2830 (1983). Though the Supreme Court declined to

fully define the term “initiate,” it did note that “a willingness and a desire for

a generalized discussion about the investigation * * * not merely a necessary

inquiry arising out of the incidents of the custodial relationship” was

sufficient to show initiation. Bradshaw at 1045–1046.

{¶20}Here, the trial court found and it is clear from the record that

Appellant was advised of his Miranda rights. This issue is not in dispute.

Further, the fact that Appellant made an unequivocal request for counsel Highland App. No. 11CA26 14

upon being Mirandized is not in dispute. At issue, however, is whether

Appellant subsequently waived his right to counsel and to remain silent after

initially invoking those rights, by re-initiating conversation with the officers

regarding the incident.

{¶21}In the case sub judice, the trial court made explicit findings of

fact when it denied Appellant's motion to suppress. Specifically, the trial

court found that Appellant, while in custody and while being read his

Miranda rights, stated that he wanted the right to have an attorney present

during questioning. The trial court further found that upon being asked by

law enforcement for the name and contact information of his attorney, as

well as the name of anyone that might be available to care for the dogs that

were left at his residence, Appellant twice mentioned the “neighbors across

the street,” despite being told that they were not discussing the neighbors

across the street or the incident. The trial court also found that Appellant

then stated that the officers could ask him questions but he just might not

answer them, and that when asked if he wanted to answer questions, he

nodded his head affirmatively.

{¶22}Based upon these facts, the trial court determined that “there

was no interrogation of the Defendant after he invoked his right to counsel

until the Defendant himself stated they could ask him questions and he Highland App. No. 11CA26 15

might answer them and he might not, and after being asked if that meant he

was willing to answer questions he nodded his head yes.” The trial court

further found that Appellant knowingly, intelligently, and voluntarily waived

his right to counsel and against self incrimination, and that to the extent

Appellant’s version of the conversation differed from that of the officers,

“the Court has determined that the officers’ version is more credible than

that of the Defendant.”

{¶23}After careful review, we conclude that the trial court’s findings

are supported by the record. After Appellant’s unequivocal invocation of

the right to counsel, Appellant re-initiated the interrogation by stating that

the officers could ask him questions, though he might not answer them, and

by nodding in the affirmative when he was then asked if he wanted to

answer questions. Thus, we conclude that the interrogation was free to

continue at that point, which it did, resulting in Appellant confessing to

entering the victim’s residence with a gun in order to confront him about a

loan that had not been repaid, and ultimately shooting the victim. This leads

to the conclusion that Appellant knowingly and intelligently waived his

rights when he spoke with law enforcement. Thus, the trial court was correct

to deny Appellant's motion to suppress, and we therefore overrule

Appellant's first assignment of error. Highland App. No. 11CA26 16

ASSIGNMENT OF ERROR II AND IV

{¶24}We address Appellant’s second and fourth assignments of error

in conjunction with one another as they are interrelated. In his second

assignment of error, Appellant contends that the trial court erred in limiting

his cross examination of the victim, which he asserts denied him his

constitutional right of confrontation as guaranteed by the Ohio and United

States Constitutions. Specifically, Appellant questions whether a cross

examiner is entitled to challenge a negative response with contradicting

evidence when a witness denies mental illness or drug abuse. In his fourth

assignment of error, Appellant contends that the trial court erred by refusing

to admit evidence of the victim’s drug use and mental illness, thus depriving

Appellant of his right to a fair trial and compulsory process. Under this

assignment of error, Appellant questions whether it is error to prevent the

introduction of evidence contradicting a witness’s denial of drug use and

mental illness.

{¶25}In response to Appellant’s second and fourth assignments of

error, the State contends that the trial court was correct in adhering to its

earlier ruling on a motion in limine and in limiting the cross examination of

the victim to those things which were relevant to the crime. Further, the

State argues that Appellant’s trial counsel did not possess, nor actually Highland App. No. 11CA26 17

attempt to admit any extrinsic evidence, and that even if the exclusion of

such alleged evidence was in error, it was harmless error in light of the

overwhelming evidence of Appellant’s guilt, specifically, Appellant’s

confession.

{¶26} “A trial court has broad discretion in the admission or exclusion

of evidence, and so long as such discretion is exercised in line with the rules

of procedure and evidence, its judgment will not be reversed absent a clear

showing of an abuse of discretion with attendant material prejudice to

defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921

N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App.3d 825,

2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist).

{¶27}Abuse of discretion is more than an error of law or judgment;

rather, it implies that the court's attitude is unreasonable, arbitrary or

unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796,

762 N.E.2d 940; State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980). When an appellate court applies this standard, it can not substitute its

judgment for that of the trial court. State v. Jeffers, 4th Dist. No. 08CA7,

2009-Ohio-1672, ¶ 12; In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566

N.E.2d 1181 (1991); citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559

N.E.2d 1301 (1990). Highland App. No. 11CA26 18

{¶28}In these assignments of error, which we address together,

Appellant contends that he should have been permitted to impeach the

victim’s trial testimony stating that he had not used cocaine on the day of the

shooting, and had not suffered from depression or psychotic episodes prior

to the shooting. Appellant argues that when the victim denied these

allegations, he should have been permitted to impeach the victim by

introducing extrinsic evidence in the form of medical records and deposition

testimony, which Appellant claims contradicted the victim’s answers given

at trial.

{¶29}Appellant submits that the admission of such extrinsic evidence

was proper under Evid.R. 616(B), “Methods of impeachment,” which

permits a witness to be impeached either by examination or by extrinsic

evidence, when attempting to prove a sensory or mental defect with respect

to the capacity, ability, opportunity to observe, remember or relate.

However, the trial court more appropriately categorized the attempt to

introduce this evidence as “character assassination” of the victim, and

excluded the proffered testimony and evidence. For the following reasons,

we conclude that the trial court properly exercised its discretion in excluding

this evidence. Highland App. No. 11CA26 19

{¶30}Evid.R. 404 provides that evidence of a witness’s character is

generally inadmissible. Evid.R. 405 provides that when admissible, inquiry

is allowable only into “relevant” specific instances of conduct and that proof

of specific instances of conduct may only be made “[i]n cases in which

character or a trait of character of a person is an essential element of a

charge.” More specifically, Evid.R. 404(A)(2) provides, with respect to

character of the victim, that “[e]vidence of a pertinent trait of character of

the victim” is admissible. (Emphasis added). Here, however, we find that

evidence of drug use or prior depression on the part of the victim has no

pertinence or relevance with regard to whether he was the victim of a

shooting, and as such, would not have been properly admitted as evidence

under these rules.

{¶31}Additionally, Evid.R. 608 governs evidence of character and

conduct of a witness and provides in (B) that “[s]pecific instances of conduct

of a witness, for the purpose of attacking or supporting the witness’s

character for truthfulness, other than conviction of a crime as provided in

Evid.R. 609, may not be proved by extrinsic evidence.” “ ‘Other than the

Evid.R. 609 exception for certain criminal convictions, a witness’s

credibility may not be impeached by extrinsic proof of special instances of

his conduct; such conduct may inquired into only by the intrinsic means of Highland App. No. 11CA26 20

cross-examination within the guidelines set forth in Evid.R. 608(B).

Criminal activities not resulting in conviction cannot ordinarily form the

basis for an attack upon a witness’s credibility’ ” State v. Hurt, 2nd Dist. No.

20155, 2004-Ohio-4266, ¶ 11; citing State v. Skatzes, 2nd Dist. No. 15848,

2003-Ohio-516, ¶ 183.

{¶32} “ ‘Furthermore, the answers given in response to questions

about specific instances of conduct on cross-examination must be accepted

by the examiner with no further attempt to establish the conduct through

extrinsic evidence.’ ” State v. Reed, 110 Ohio App.3d 749, 754, 675 N.E.2d

77 (4th Dist. 1996); citing State v. Gardner, 59 Ohio St.2d 14, 19, 391

N.E.2d 337 (1979). Thus, we conclude that attempting attack the victim’s

character by pointing to specific prior conduct through the use of extrinsic

evidence in the form of medical records would be a prohibited method under

Evid.R. 608(B).

{¶33} Finally, Evid.R. 613 governs impeachment by self

contradiction. Because Appellant does not argue admission was proper

under this rule, we only address it superficially by simply noting that we

likewise conclude admission of the evidence at issue would be improper

under this rule as well. We primarily reach this conclusion based upon

Evid.R. 613(B)(2)’s requirement that the “subject matter of the statement” Highland App. No. 11CA26 21

be a “fact that is of consequence to the determination of the action other than

the credibility of witness[.]” Here, we do not believe that the victim’s

credibility or character for truthfulness is a fact of consequence to the

determination of whether Appellant, by Appellant’s own admission, shot the

victim. Thus, we find Evid.R. 613 to be as equally inapplicable as Evid.R.

404, 405 and 608.

{¶34} In light of the foregoing, we find no abuse of discretion on the

part of the trial court in excluding the evidence at issue. As such, we cannot

conclude that Appellant was denied his constitutional rights of

confrontation, to compulsory process, and to a fair trial. Thus, we find no

merit to Appellants’ second and fourth assignments of error and therefore,

they are both overruled.

ASSIGNMENT OF ERROR III

{¶35} In his third assignment of error, Appellant contends that the

trial court erred in refusing to permit a witness to testify regarding his

opinion as to truthfulness of the victim, which Appellant claims deprived

him of his right to a fair trial and compulsory process as guaranteed by the

Ohio and Federal Constitutions. Specifically, Appellant questions whether a

witness should have been barred from testifying regarding his opinion as to

the truthfulness of the victim because of the witness’s status as a police Highland App. No. 11CA26 22

officer. The State responds by arguing that the trial court’s exclusion of this

opinion testimony was proper, and that even if it was in error, such exclusion

was not prejudicial to Appellant considering that Appellant confessed to

shooting the victim.

{¶36}As this assignment of error also deals with the trial court’s

exclusion of certain evidence at trial, we refer to the standard of review set

forth under our analysis of Appellant’s second and fourth assignments, with

a simple reminder that a trial court has broad discretion in the admission or

exclusion of evidence and a trial court’s judgment will not be reversed

absent a clear showing of an abuse of that discretion, as well as material

prejudice to the defendant. See, State v. Green and State v. Powell, supra.

{¶37}A review of the record reveals that the testimony of Xenia

police officer, Chris Stutes, was the subject of a pre-trial motion in limine

filed by the State, which motion was granted by the trial court. During the

hearing on the motion in limine, defense counsel explained that it sought to

introduce the officer’s testimony “solely for the purpose of expressing an

opinion as to whether or not Mr. Harris is an honest person.” Defense

counsel argued that such testimony was permitted under Evid.R. 608(A), as

opinion testimony as to the victim’s character, as well as Evid.R. 608(B),

which deals with specific instances of conduct in regards to evidence of Highland App. No. 11CA26 23

character and conduct of a witness. The trial court disagreed, reasoning that

any opinion offered by the officer would have to be based on specific

instances of conduct, which cannot be proved by extrinsic evidence under

Evid.R. 608(B), and that testimony of the officer related to his prior

involvement with the victim would be prohibited extrinsic evidence.

{¶38}Defense counsel again attempted to introduce Officer Stutes as a

witness at trial, arguing at that time that his testimony was permissible under

Evid.R. 404(A)(2) and 405(A), as “opinion bearing upon the pertinent

character trait of Jonathan Harris; or engaging in unprovoked acts of

violence.” The proffered testimony essentially consisted of Officer Stutes

opinion that the victim, Harris, was untruthful and had engaged in

unprovoked acts violence, testimony which was primarily based upon an

incident with law enforcement that occurred in 2005, for which Harris was

never convicted. The trial court adhered to its prior ruling on the motion in

limine and excluded the proffered testimony, reasoning that the opinion was

based upon Harris’ involvement in an incident for which he was never

convicted, and that the officer might be perceived as an expert, which would

result in undue prejudice against Harris.

{¶39}Evid.R. 404, which governs the admission of character

evidence, provides in pertinent part as follows: Highland App. No. 11CA26 24

(A) Character evidence generally. Evidence of a person's

character or a trait of character is not admissible for the purpose

of proving action in conformity therewith on a particular

occasion, subject to the following exceptions:

***

(2) Character of victim. Evidence of a pertinent trait of

character of the victim of the crime offered by an accused, or by

the prosecution to rebut the same, or evidence of a character

trait of peacefulness of the victim offered by the prosecution in

a homicide case to rebut evidence that the victim was the first

aggressor is admissible; however, in prosecutions for rape,

gross sexual imposition, and prostitution, the exceptions

provided by statute enacted by the General Assembly are

applicable.

Further, Evid.R. 405 governs methods of proving character and provides as

follows:

(A) Reputation or opinion

In all cases in which evidence of character or a trait of character

of a person is admissible, proof may be made by testimony as to

reputation or by testimony in the form of an opinion. On cross- Highland App. No. 11CA26 25

examination, inquiry is allowable into relevant specific

instances of conduct.

(B) Specific instances of conduct

In cases in which character or a trait of character of a person is

an essential element of a charge, claim, or defense, proof may

also be made of specific instances of his conduct.

{¶40} Thus, Evid.R. 404(A) generally limits evidence of a person’s

character, or certain character traits, subject to certain exceptions. In

particular, with respect to the character of a victim, Evid.R. 404(A)(2)

permits evidence of “a pertinent trait of character of the victim * * *”

Here, we find that even if the victim had a character trait of “engaging in

unprovoked acts of violence,” as argued by the defense, such trait fails to be

“pertinent” or “relevant” in the absence of a self-defense argument on the

part of the defendant. Of importance, defense counsel conceded prior to

instructions being provided that the evidence did not support a jury

instruction on self defense. State v. Depew, 4th Dist. No. 00CA2562, 2002-

Ohio-6158, ¶ 48 (evidence submitted for the purpose of proving self defense

was rendered irrelevant where self defense was not at issue); State v. White,

4th Dist. No. 03CA2926, 2004-Ohio-6005, ¶ 72 (“* * * evidence that is not

relevant is not admissible.” ); citing Evid.R. 402. Highland App. No. 11CA26 26

{¶41}We now turn our attention to Appellant’s argument that this

evidence should have been admitted under Evid.R. 608, which provides as

“(A) Opinion and reputation evidence of character

The credibility of a witness may be attacked or supported by

evidence in the form of opinion or reputation, but subject to

these limitations: (1) the evidence may refer only to character

for truthfulness or untruthfulness, and (2) evidence of truthful

character is admissible only after the character of the witness

for truthfulness has been attacked by opinion or reputation

evidence or otherwise.

Specific instances of the conduct of a witness, for the purpose

of attacking or supporting the witness's character for

truthfulness, other than conviction of crime as provided in Evid.

R. 609, may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if clearly probative of

truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning the witness's

character for truthfulness or untruthfulness, or (2) concerning Highland App. No. 11CA26 27

the character for truthfulness or untruthfulness of another

witness as to which character the witness being cross-examined

has testified. * * *”

The trial court concluded, and rightfully so, that the officer’s proffered

“opinion testimony” was essentially based upon a specific instance of

conduct of the victim that occurred several years prior, an incident for which

Appellant was never convicted. The trial court further concluded that the

officer’s testimony would have constituted “extrinsic evidence,” which,

except for evidence of actual convictions, is barred by Evid.R. 608(B).

{¶42}After reviewing the record, we agree with the trial court’s

conclusions and therefore find no abuse of discretion in the exclusion of this

evidence. Further, and as set forth above, we must be mindful that Evid.R.

401 defines “relevant evidence” as “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.” We cannot conclude that a victim’s alleged character of

untruthfulness, or character trait for “engaging in unprovoked acts of

violence,” is even relevant, bearing in mind the absence of a self defense

argument on the part of Appellant. As such, and in light of our conclusion Highland App. No. 11CA26 28

that the trial court did not abuse its discretion in excluding Officer Stutes’

testimony, Appellant’s third assignment of error is overruled.

ASSIGNMENT OF ERROR V

{¶43}In his fifth assignment of error, Appellant contends that the trial

court erred in entering judgments of conviction and sentences on both

felonious assault and aggravated burglary in violation of R.C. 2941.25 and

the double jeopardy clause, claiming that they are allied offenses of similar

import. The State contends that aggravated burglary and felonious assault

are not allied offenses and as such did not merge for purposes of sentencing.

{¶44}When determining whether multiple offenses should have

merged under R.C. 2941.25, “[o]ur standard of review is de novo.” State v.

Buckta, 4th Dist. No. 96 CA 3, 1996 WL 668852 (Nov. 12, 1996); See, also,

Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶ 16 (“ ‘We review

questions of law de novo.’ ”); quoting State v. Elkins, 4th Dist. No. 07CA1,

2008-Ohio-674, ¶ 12, quoting Cuyahoga Cty. Bd. of Commrs. v. State, 112

Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.

R.C. 2941.25 provides:

“(A) Where the same conduct by defendant can be construed to

constitute two or more allied offenses of similar import, the Highland App. No. 11CA26 29

indictment or information may contain counts for all such

offenses, but the defendant may be convicted of only one.

“(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in

two or more offenses of the same or similar kind committed

separately or with a separate animus as to each, the indictment

or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.”

{¶45} As the Supreme Court recently explained in State v. Johnson,

128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C.

2941.25, “the court must determine prior to sentencing whether the offenses

were committed by the same conduct.” Johnson at ¶ 47. The initial question

“is whether it is possible to commit one offense and commit the other with

the same conduct, not whether it is possible to commit one without

committing the other.” Johnson at ¶ 48 (Emphasis added). “If the offenses

correspond to such a degree that the conduct of the defendant constituting

commission of one offense constitutes commission of the other, then the

offenses are of similar import.” Id. Next, if the answer to the first question

is yes, we must then look to the facts of the case and determine whether the

two offenses actually were committed by the same conduct, “i.e., ‘a single Highland App. No. 11CA26 30

act, committed with a single state of mind.’ ” Johnson at ¶ 49; quoting State

v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. “If

the answer to both questions is yes, then the offenses are allied offenses of

similar import and will be merged.” Johnson at ¶ 50.

{¶46} “Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are

committed separately, or if the defendant has separate animus for each

offense, then, according to R .C. 2941.25(B), the offenses will not merge.”

Johnson at ¶ 51 (Emphasis added).

{¶47}Here, Appellant was convicted of aggravated burglary, a first

degree felony in violation of R.C. 2911.11(A)(1), and felonious assault, a

second degree felony in violation of 2903.11(A)(2), each with R.C.

2941.145 firearm specifications. R.C. 2911.11, which defines aggravated

burglary, provides in pertinent part as follows:

“(A) No person, by force, stealth, or deception, shall trespass in

an occupied structure or in a separately secured or separately

occupied portion of an occupied structure, when another person

other than an accomplice of the offender is present, with

purpose to commit in the structure or in the separately secured Highland App. No. 11CA26 31

or separately occupied portion of the structure any criminal

offense, if any of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict

physical harm on another;”

R.C. 2903.11(A)(2), which defines felonious assault, provides in pertinent

part as follows:

“(A) No person shall knowingly do either of the following:

(2) Cause or attempt to cause physical harm to another or to

another's unborn by means of a deadly weapon or dangerous

ordnance.”

{¶48}Ohio cases have consistently held that aggravated burglary and

felonious assault are not allied offenses of similar import. State v. Barker,

183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 18 (2nd Dist);

citing State v. Johnson, 5th Dist. No. 06CAA070050, 2006-Ohio-4994; State

v. Jackson, 21 Ohio App.3d 157, 487 N.E.2d 585 (8th Dist. 1985); State v.

Feathers, 11th Dist. No. 2005-P-0039, 2007-Ohio-3024; see also, State v.

Carter, 8th Dist. No. 61502, 1993 WL 7700 (January 14, 1993). However,

these cases and the reasoning applied therein pre-date the Supreme Court of

Ohio’s test recently announced in State v. Johnson, supra. Highland App. No. 11CA26 32

{¶49} More recently, however, we have held that a defendant could

commit aggravated robbery and felony murder with the same conduct. See

State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 32; State v. Abdi,

4th Dist. No. 09CA35, 2011-Ohio-3550, ¶ 39. By extension, we have also

reasoned that aggravated burglary and aggravated (felony) murder are

offenses of similar import under R.C. 2941.25(A). State v. Williams, 4th

Dist. No. 10CA3381, 2012-Ohio-6083, ¶ 50. Thus, in considering our prior

reasoning that aggravated burglary and aggravated murder may be

committed with the same conduct under State v. Johnson, certainly

aggravated burglary and felonious assault may be committed by the same

conduct as well.

{¶50} Based upon the record before us, it appears that the aggravated

burglary was committed with the same animus as the felonious assault.

Appellant was convicted of breaking into the victim’s residence and

inflicting physical harm on him by shooting him in the face two times, thus

completing the aggravated burglary. State v. Lacavera, 8th Dist. No. 96242,

2012-Ohio-800, ¶ 46. A review of the record before us reveals that these

events all occurred as part of the same transaction, and thus were committed

with the same animus. Id. See also, State v. Ragland, 5th Dist. No.

2010CA00023, 2011-Ohio-2245, ¶ 80 (implicitly finding without expressly Highland App. No. 11CA26 33

stating that, under the Johnson test it is possible to commit aggravated

burglary and felonious assault with the same conduct, but ultimately

determining the two were not allied offenses as they were committed

separately and with a separate animus).

{¶51} As such, we conclude that the crimes of aggravated burglary

and felonious assault are allied offenses of similar import. Thus, Appellant

may be found guilty of both, but only convicted and sentenced for one.

State v. Swiergosz, 6th Dist. App. No. l-10-1013, l-10-1052, 2012-Ohio-830,

¶ (“The statutory mandate that only one ‘conviction’ result from allied

offenses is a restriction ‘against sentencing a defendant for more than one

allied offense.’ (Emphasis added) State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, ¶ 29)”); R.C. 2941.25(A). Therefore, this

matter must be remanded for resentencing. At the sentencing hearing, the

State must elect which allied offense it will pursue for purposes of

sentencing and conviction. Lacavera at ¶ 47; citing State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25. Accordingly,

Appellant’s fifth assignment of error is sustained and the decision of the trial

court convicting and sentencing Appellant for both of these offenses is

reversed. Highland App. No. 11CA26 34

ASSIGNMENT OF ERROR VI

{¶52} In his sixth assignment of error, Appellant contends that the

trial court erred in entering consecutive sentences on the firearm

specifications from a single transaction. The State counters by arguing that

the trial court was correct in sentencing Appellant to consecutive firearm

specifications, which it contends was required under R.C. 2929.14(D)(1)(g).

However, based upon our disposition of Appellant’s fifth assignment of

error, which concluded that aggravated burglary and felonious assault are

allied offenses of similar import for which the State could only obtain one

sentence and conviction, we agree with Appellant.

{¶53} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, the Supreme Court of Ohio announced the standard for

appellate review of felony sentences. We must employ a two-step analysis.

First, we must “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether

the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If

the sentence is not clearly and convincingly contrary to law, we review it for

an abuse of discretion. Id.

{¶54} Appellant complains that the trial court’s imposition of

consecutive sentences for the two firearm specifications was contrary to law. Highland App. No. 11CA26 35

The State responds by directing our attention to the version of R.C. 2929.14

that was in effect at the time Appellant committed his crimes, with an

effective date of April 7, 2009, which provides in section (D)(1)(g) as

“If an offender is convicted of or pleads guilty to two or more

felonies, if one or more of those felonies is aggravated murder,

murder, attempted aggravated murder, attempted murder,

aggravated robbery, felonious assault, or rape, and if the

offender is convicted of or pleads guilty to a specification of the

type described under division (D)(1)(a) of this section in

connection with two or more of the felonies, the sentencing

court shall impose on the offender the prison term specified

under division (D)(1)(a) of this section for each of the two most

serious specifications of which the offender is convicted or to

which the offender pleads guilty and, in its discretion, also may

impose on the offender the prison term specified under that

division for any or all of the remaining specifications.”

(Emphasis added).

The specifications described in 2929.14(D)(1)(a) include 2941.145

specifications, which are the types of firearm specifications Appellant was Highland App. No. 11CA26 36

sentenced on relating to the aggravated burglary, as well as the felonious

assault charges. Further, R.C. 2929.14(D)(1)(a)(ii) states that the prison

term for R.C. 2941.145 specifications is three years.

{¶55} Here, although Appellant was found guilty of two felony

offenses, one of which was felonious assault, we have determined that those

offenses were allied offenses of similar import. As such, Appellant can only

be “convicted” of one of the offenses. “Where the same conduct by

defendant can be construed to constitute two or more allied offenses of

similar import, the indictment or information may contain counts for all such

offenses, but the defendant may be convicted of only one.” R.C.

2941.25(A); State v. Swiergosz, supra, at ¶42. Further, in order to correctly

apply R.C. 2929.14(D)(1)(g), which specifies that an offender must be

“convicted” or have plead guilty to two or more felonies, we must recognize

that “[u]nder R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the

imposition of a sentence or penalty.” Swiergosz at ¶ 43; citing Whitfield at ¶

12. Because Appellant cannot be convicted of both aggravated burglary and

felonious assault, he does not fall under the purview of R.C.

2929.14(D)(1)(g), which requires convictions for two felonies. Thus, the

trial court’s imposition of two three-year firearms terms was contrary to law.

Accordingly, Appellant’s sixth assignment of error is sustained. As a result, Highland App. No. 11CA26 37

the trial court’s decision in this regard is also reversed, and the matter is

remanded for resentencing in accordance with our instructions under

Appellant’s fifth assignment of error.

JUDGMENT REVERSED AND REMANDED. Highland App. No. 11CA26 38

Harsha, J., concurring:

{¶56} I concur in judgment and opinion on the first and sixth

assignments of error. However, I concur in judgment only on the remaining

assignments of error.

{¶57} On the second assignment of error I conclude both the trial

court and our opinion mischaracterizes the nature of the impeachment

evidence offered by the appellant. I agree with Jacobs’ assertion that

evidence of the victim’s drug use and mental illness are probative of the

victim’s capacity to observe, remember or relate in events. Thus, they

should have been admitted under Evid.R. 616(B), which expressly permits

the use of extrinsic evidence to challenge the witness’s credibility on those

bases.

{¶58} It was also error under the fourth assignment of error to

prohibit the appellant from attacking the victim’s character for truthfulness

under Evid.R. 404(A)(3), which allows an opponent to impeach a witness’s

credibility. A witness’s character trait for veracity is always relevant to

determine credibility. See Evid.R. 404(A)(3), staff note.

{¶59} Likewise, I conclude under the third and fourth assignments of

error that the trial court erred in refusing to admit the opinion testimony Highland App. No. 11CA26 39

concerning the victim’s character for truthfulness. See Evid.R. 404(A)(3),

Evid.R. 405(A) (the method of proving character – by opinion) and Evid.R.

608(A) (evidence of character of a witness by opinion).

{¶60} However, based upon the admission of the appellant’s

confession and the evidence that corroborates the victim’s testimony, I find

the errors in assignments of error two, three, and four to be harmless beyond

a reasonable doubt. See, Chapman v. California (1967), 386 U.S. 18, 24, 87

S.Ct. 824, 17 L.E.2d 705.

{¶61} Moving to the fifth assignment of error, I agree the offenses are

“of similar import.” But, I would remand to the trial court to determine if

they were “committed by the same conduct”, i.e. a single act, committed

with a single state of mind. See State v. Williams, Scioto App. No.

10CA3381, 2012-Ohio-6083, ¶¶ 45-46. Highland App. No. 11CA26 40

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED and that the Appellant recover of Appellee 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 Highland County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I & VI; Concurs in Judgment Only with Opinion as to Assignments of Error II, III, IV, & V.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.