[Cite as State v. Pennington, 2018-Ohio-3640.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-170199 C-170200 Plaintiff-Appellee, : TRIAL NOS. B-1501989 B-1502543 vs. :
BRANDON PENNINGTON, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in C-170200; Appeal Dismissed in C-170199
Date of Judgment Entry on Appeal: September 12, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Brandon Pennington appeals his convictions for murder and having
weapons while under a disability. However, he has failed to raise any assignment of
error challenging his conviction for having weapons while under a disability, so we
dismiss the appeal in the case numbered C-170199. See App.R. 16(A); see also State
v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 42-43 (1st Dist.). Finding no merit in
his assignments of error relating to the murder conviction, we affirm.
Events Preceding the Shooting of Ashley Herald
{¶2} On the night of April 12, 2017, Ashley Herald invited her friend Donny
McKee to Pennington’s home in the Price Hill area of Cincinnati, where she had been
staying for several days. McKee, a tattoo artist, inked tattoos on both Herald and
Pennington that night and then left in the early hours of the 13th. Unbeknownst to
Pennington, McKee had taken a ring and some video games from Pennington’s
home.
{¶3} By about 2:30 a.m. on the 13th, Herald and Pennington figured out
that the ring was gone. In text messages to McKee, Herald accused him of stealing
the ring and demanded it back, stating that Pennington was “flipping out” and “sad
and Beyond mad about his little [girl’s] ring!”
{¶4} At trial, McKee testified that Herald had given him the ring as
collateral because she owed him $20 for the tattoo work. He said that he took the
ring to his girlfriend, who pawned it for him the next day.
{¶5} McKee believed that Pennington was reading the text messages on
Herald’s phone. So in his reply text message to Herald, he denied taking the ring and
instead accused her of stealing it.
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{¶6} At 4:00 a.m., Herald texted her mother for advice because “a tattoo
guy” whom she believed to be a friend had just stolen Pennington’s ring. According
to Herald’s text, Pennington was “so mad and kind of cold acting towards me.”
{¶7} At 10:30 a.m., Pennington texted McKee to tell him that he did not
blame him for the missing ring, and that he just wanted to find it. McKee told
Pennington that Herald must have stolen the ring and hidden it in the house.
Pennington replied, “Rte now she don’t even own the clothes on her back this bitch
life mine til she has my shit back.” In relation to the missing video games,
Pennington texted McKee, “She says wat games but I’ll get it out of her just keep me
posted if u find them.” When McKee complained that Herald was withholding his
payment for the tattooing, Pennington replied, “I feel you she fucked a lot shit up.”
{¶8} By then, Herald discovered that McKee was lying to Pennington about
the ring. She texted McKee, “Why are you trying to make him think this was me you
fucking piece of shit.”
{¶9} Meanwhile, Herald texted a girlfriend, “I had a tattoo guy come do
some work on me and Brandon last night and [he] stole some expensive shit from
him and dude is trying to convince Brandon that I did it!! Wtf..this is real fucked
up.”
{¶10} At about 3:00 p.m., Herald texted McKee, “I’m gonna get the shit beat out of me for this ..real talk.. I’m not even supposed to be texting u right now.” Police
discovered this text on McKee’s phone. The same text, however, had been deleted
from Herald’s phone, which was recovered by police the night of the shooting.
{¶11} Around 5:00 p.m., Herald texted her friend Thomas Burles to tell him to meet her in Price Hill after he got off of work that night.
{¶12} At 10:00 p.m., Herald texted Burles, “Just call me when ever u get off babe..”
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The Minutes Before Herald Was Shot
{¶13} At 10:37 p.m., Burles texted Herald, “I’m off now, you on.
Rosemont?”
{¶14} At 10:42 p.m., Herald texted Burles, “Yes on Rosemont.”
{¶15} At 10:43 p.m., Herald texted, “When are you coming?!”
{¶16} At 10:44 p.m., Burles replied, “On my way now baby.” And Herald replied, “Ok.” That was the last time that Burles heard from Herald.
After the Shooting
{¶17} At 10:51 p.m., seven minutes after Herald’s last text message, Pennington called 911 to report that a female friend had shot herself in the face.
Before he mentioned her terrible injury, however, he explained to the dispatcher that
the two of them had been “chillin’ and whatnot—I guess she was going through stuff
that my friend left in the closet, and then I hear a pop, and she shot herself.”
{¶18} The dispatcher gave Pennington first-aid instructions and asked some questions. Pennington stated that he had been on the first floor when he heard the
gunshot. He found his friend in his second-floor bedroom, and he moved the gun
that his friend used to shoot herself to a side table. He said he had no idea that there
was a gun in the home.
{¶19} Police arrived at the home minutes later and found Herald in Pennington’s bedroom, unconscious, with an obvious gunshot wound to her left
cheek. Pennington pointed out where he had placed the gun. An officer testified
Pennington’s calm and reserved demeanor was remarkable, given that his friend had
just shot herself in his home.
{¶20} Shortly after Herald was transported to the hospital, several investigators arrived. Upon entering Pennington’s bedroom, they quickly began to
doubt Pennington’s claim that Herald had shot herself. The gun, a Taurus 9 mm
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handgun, was recovered from a shelf near the bed. Two bottles of cleaning products
were lying on the floor in front of the shelf.
{¶21} Criminalist Patrick Moran testified that, in his 16 years with the police homicide unit, he investigated 60 to 70 suicides and 60 to 70 homicides per year. He
said that if the Herald shooting was a suicide as Pennington claimed, then the
handgun was “the cleanest gun I’ve ever seen in a suicide.” He explained that in
suicide cases:
A great many times[,] the gun is covered in blood. If it’s a
close-contact wound, it’s my experience that the gun and the barrel are
very, very entrusted [sic] with blood and human fluids.
If this gun is dropped by a person that shoots it, it’s probably
gonna land in their blood. This weapon’s very clean.
{¶22} Detective Greg Gehring, who had investigated hundreds of homicides and suicides in the past 15 years, testified that although there was blood and brain
matter on Pennington’s bed, he immediately noticed how clean the handgun was, for
having reportedly been used in a close shooting.
{¶23} Later on, when Gehring went to the hospital to see the still- unconscious Herald, he noted that the gunshot wound to her left cheek was not, in
his experience, consistent with a suicide. According to Gehring, gunshot wounds in a
suicide are “either usually inner ear, or they’re close contact or contact,” but Herald’s
wound was none of those.
{¶24} Meanwhile, at Pennington’s home, police found an operable shotgun, a bandolier with shotgun shells, and assorted ammunition for different firearms,
including .22-caliber cartridges, 9 mm cartridges, .380-caliber cartridges, and 12-
gauge shotgun shells. Pennington was arrested for having weapons while under a
disability.
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{¶25} During an interview with police, Pennington claimed that he had never seen the handgun used in the shooting, and suggested that a “tattoo guy” may have
brought it to his house the night before. He said that after hearing the gunshot, he
ran upstairs, grabbed the gun “instantly” and “threw it up there” on the shelf.
{¶26} After Herald’s death eight days later, deputy coroner Mona Gretel Case Harlan Stephens, M.D., a forensic pathologist who has conducted more than 5,000
autopsies, conducted an autopsy on Herald’s body. Dr. Stephens concluded that,
based upon the sparse stippling about three inches from and around the gunshot
wound, it was not a contact wound, meaning that the muzzle of the gun was not
against Herald’s cheek when it fired. She testified that at the time of the injury, the
end of the gun barrel was between six inches and two feet away from Herald’s face,
“too far away for this to be a usual suicide.”
{¶27} Dr. Stephens determined that the manner of Herald’s death was homicide. She ruled out the possibility of a suicide based upon the appearance of the
wound, the appearance of the stippling, and the location of the wound on the cheek,
slightly below and to the side of the left eye. She testified that “the location of the
wound and the angle would be a very very unusual way for anyone, much less a
female, to shoot herself.” She testified on cross-examination that she could not,
however, completely rule out the possibility of suicide.
{¶28} Police traced the handgun used in Herald’s shooting to a purchase made ten years earlier by Alisha Calhoun, Pennington’s former girlfriend. According
to Calhoun, Pennington had her buy both the handgun and the shotgun for him in
2007. After Calhoun cleared the background check, Pennington gave her the money
to buy the guns, and then he kept both of the guns in his Price Hill home.
{¶29} Examination and testing of the handgun revealed that at the time Herald was shot, the shell casing had not ejected properly upon firing, but the gun
had fired without malfunction. No usable fingerprints were recovered from the gun.
6 OHIO FIRST DISTRICT COURT OF APPEALS
Swabbing of the gun revealed the presence of a mixture of DNA from at least two
individuals, but the profile contained insufficient data to be compared with either
Herald or Pennington.
{¶30} Pennington was indicted for murder, felony-murder, and having weapons while under a disability. Following a bench trial, the trial court found
Pennington guilty on all counts. After merger of the offenses, he was convicted of
murder with an accompanying firearm specification and the weapons-under-
disability count. He was sentenced to 15 years to life for the murder count, three
years for the specification, and 36 months in prison for the weapons-under-disability
count. The court ordered that all be served consecutively, for a total of 21 years to
life.
I. Ineffective Assistance of Counsel
{¶31} In his first assignment of error, Pennington argues that he was denied the effective assistance of counsel. To prevail on an ineffective-assistance claim, an
appellant must demonstrate that: (1) counsel’s performance was deficient, and (2)
counsel’s deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 141-142, 538 N.E.2d 373 (1989).
{¶32} In reviewing defense counsel’s performance, we must remain highly deferential. Strickland at 689. We must “recognize that counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. at 690.
{¶33} An appellant’s demonstration that counsel’s performance was deficient does not warrant the reversal of a conviction if counsel’s error had no effect on the
judgment. Id. at 691; Bradley at 142. The appellant must affirmatively demonstrate
that there is a reasonable probability that, but for counsel’s deficient performance,
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the result of the trial would have been different. Strickland at 693-694; Bradley at
143.
{¶34} A. Failure to hire a forensic pathology expert. Pennington first asserts that defense counsel’s performance was deficient because counsel failed to
request funds for or hire a forensic pathology expert to contradict the opinion of the
state’s forensic pathology expert, Dr. Stephens.
{¶35} Generally, the decision whether to call any witness “falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v.
Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001). A decision by defense
counsel not to call an expert witness and instead rely on cross-examination of the
state’s expert is generally a matter of trial strategy and does not constitute ineffective
assistance of counsel. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶ 66; State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d
828, ¶ 118; State v. McHenry, 1st Dist. Hamilton No. C-170671, 2018-Ohio-3383, ¶
25.
{¶36} Here, trial counsel conducted a thorough and rigorous cross- examination of the state’s expert, attacking her opinion that the manner of death was
homicide, and leading her to concede that there was a chance, albeit slim, that the
victim had shot herself. We conclude that defense counsel’s decision not to hire or
call a forensic pathology expert fell “within the wide range of reasonable professional
assistance.” See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d
1096, ¶ 244, quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶37} Pennington directs us to Hinton v. Alabama, 571 U.S. 263, 274-275, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014), where the United States Supreme Court held
that trial counsel had rendered deficient performance by employing an expert he
knew to be inadequate because he failed to understand the resources that state law
made available to him. However, Hinton involved a postconviction proceeding
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where the defendant produced evidence outside the trial record, including the
affidavits of three experts who had reached different conclusions than the state’s
experts. See id. at 270.
{¶38} In this case, on the other hand, Pennington cannot establish prejudice based on the record before us. Resolving this issue in Pennington’s favor would be
purely speculative. See State v. Madrigal, 87 Ohio St.3d 378, 390, 721 N.E.2d 52
(2000). Nothing in the record indicates that testimony from another forensic
pathologist would have been favorable to Pennington and would have altered the
outcome of the trial. See id. at 390-391; Mundt at ¶ 118; State v. Jeffries, 1st Dist.
Hamilton No. C-170182, 2018-Ohio-2160, ¶ 78-79. “Establishing that would require
proof outside the record, such as affidavits demonstrating the probable testimony.
Such a claim is not appropriately considered on a direct appeal.” Madrigal at 391.
Therefore, even assuming that counsel’s failure to obtain a forensic pathology expert
was deficient, Pennington has failed to demonstrate any resulting prejudice.
{¶39} B. Failure to discover that the handgun model was defective. Pennington also argues that counsel should have discovered that the model of
handgun that caused Herald’s injuries, a Taurus PT111 Millennium, was defective
and had been the subject of a Florida class-action lawsuit that alleged defects with
the handgun’s firing. He asserts that information regarding the defects in the Taurus
handguns was “widely publicized,” citing a court order that approved a class-action
settlement in the Florida case. See Carter v. Forjas Taurus S.A., S.D.Fla. No. 1:13-
CV-24583-PAS, 2016 WL 3982489 (July 22, 2016). He acknowledges, however, that
the court order in the Florida case was not made part of the record in this case. As
we have stated, we are unable to determine on appeal whether ineffective assistance
of counsel occurred where the allegations of ineffectiveness are based on facts not
appearing in the record. See State v. Cooperrider, 4 Ohio St.3d 226, 228, 448
9 OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 452 (1983); State v. Giuggio, 1st Dist. Hamilton No. C-170133, 2018-Ohio-
2376, ¶ 10.
{¶40} C. Failure to subpoena the victim’s mother. Pennington contends that defense counsel should have subpoenaed Herald’s mother to testify at trial
because she had made statements that caused the police to investigate the possibility
that Herald had previously attempted suicide.
{¶41} We will not second-guess counsel’s decision not to call any witness because that is a matter squarely within the ambit of trial strategy. See Treesh, 90
Ohio St.3d at 490, 739 N.E.2d 749. It is possible that defense counsel interviewed
Herald’s mother and decided that her testimony would not be favorable to
Pennington. Moreover, although Pennington claims that testimony by Herald’s
mother may have been favorable to his defense, there is nothing in the record to
support that assertion. Therefore, we cannot say that Pennington was prejudiced by
counsel’s decision not to call Herald’s mother as a witness. And we note that defense
counsel was able to get into evidence the officer’s testimony about a possible prior
suicide attempt.
{¶42} D. Failure to advise a pretrial guilty plea to the weapons-under- disability count. Finally, Pennington contends that trial counsel should have
advised him to enter a guilty plea to the weapons charge prior to trial to prevent the
state from introducing into evidence the shotgun, shotgun shells, and certain
ammunition that was not compatible with the shotgun or with the handgun that
caused Herald’s injuries. He claims that the evidence was relevant only to the
weapons charge and would not have been admissible at trial if he had entered the
plea beforehand.
{¶43} Pennington has not demonstrated that counsel’s performance was deficient, or that but for counsel’s deficient performance, the result of the bench trial
would have been different.
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{¶44} E. Pennington’s ineffective-assistance claims fail. Finding no
merit to Pennington’s claims that he was denied the effective assistance of counsel,
we overrule the first assignment of error.
II. Admission of Evidence
{¶45} In his second assignment of error, Pennington argues that the trial court abused its discretion by allowing into evidence certain physical items and
testimony. We review a trial court’s decision to admit evidence under an abuse-of-
discretion standard. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d
596, ¶ 86. We will not disturb on appeal a trial court’s ruling on evidentiary issues
absent an abuse of discretion and proof of material prejudice. State v. Buck, 2017-
Ohio-8242, 100 N.E.3d 118, ¶ 109 (1st Dist.).
{¶46} Because this was a bench trial, we presume that the trial court did not consider improper evidence in reaching its verdict. See State v. Arnold, 147 Ohio
St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. Instead, we presume that the court
considered only “relevant, material, and competent evidence” unless the record
affirmatively discloses otherwise. State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d
754 (1987); State v. Shears, 1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, ¶ 25.
{¶47} A. Evidence related to guns and ammunition. Pennington argues that the trial court erred by admitting into evidence the shotgun, shotgun shells, and
different types of ammunition, and by allowing a detective to testify that Pennington
had a tattoo of a bullet on his hand and displayed pictures of shell casings in his
home. He contends that the evidence was irrelevant to the murder charges and
amounted to improper evidence under Evid.R. 404(B) that was used to portray him
as a person with bad character.
{¶48} Pennington failed to object to the evidence and testimony at trial, so he has waived all but plain error. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-
11 OHIO FIRST DISTRICT COURT OF APPEALS
6266, 900 N.E.2d 565, ¶ 70. “Notice of plain error * * * 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, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. To prevail on a claim that the trial court committed
plain error, an appellant must demonstrate that an error constitutes an obvious
defect in the trial proceedings and demonstrate that the error affected the outcome of
the trial. State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 23.
{¶49} Evid.R. 404(B) precludes admission of evidence of “other crimes, wrongs or acts” to prove a person’s character trait to demonstrate conduct in
conformity with that trait. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,
983 N.E.2d 1278, ¶ 16. But the rule allows trial courts broad discretion to admit
evidence of a defendant’s other acts “for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” See Evid.R. 404(B); Williams at ¶ 17.
{¶50} We question whether the evidence at issue was, in fact, evidence of “other crimes, wrongs, or acts.” Nevertheless, we do not find that the trial court
plainly erred by admitting it.
{¶51} The shotgun, shotgun shells, and ammunition were relevant to the question of whether Pennington knowingly possessed any firearm, for purposes of
the weapons-under-disability charge, so their admission did not contravene Evid.R.
404(B). Therefore, the evidence was properly admitted by the trial court.
{¶52} The detective’s testimony about Pennington’s bullet tattoo and display of pictures of shell casings came in response to a question about what evidence
contradicted Pennington’s claim that he did not know there were guns in his home.
The detectives had talked to Pennington about those items when they interviewed
him. Even though the testimony had little, if any, relevance, it was of such minor
12 OHIO FIRST DISTRICT COURT OF APPEALS
significance that no plain error occurred in its admission. See Diar, 120 Ohio St.3d
460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 73.
{¶53} B. Hearsay statements of other pathologists. Pennington argues that the trial court abused its discretion by admitting into evidence hearsay
statements from forensic pathologists who did not testify at trial. Because he asserts
that the admission of the evidence violated his rights under the Confrontation Clause
of the Sixth Amendment to the United States Constitution, we review the evidentiary
ruling de novo. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 97.
{¶54} Pennington asserts that his confrontation rights were violated by Dr. Stephens’s testimony that she had consulted with three other pathologists, all of
whom agreed with her that Herald’s death was a homicide, and that, prior to that
consultation, she had been “99 percent convinced” of her conclusion. However,
defense counsel solicited the testimony on cross-examination when he asked Dr.
Stephens if it was true that she had told defense counsel, several months prior to
trial, that she had consulted other pathologists before arriving at her determination
that Herald’s death was a homicide. So any error in the admission of the other
opinions was invited error. See State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190,
813 N.E.2d 637, ¶ 75. Under the invited-error doctrine, a party cannot take
advantage of an error that the party invited or induced the trial court to make. State
v. Wilks, Slip Opinion No. 2018-Ohio-1562, ¶ 66. So Pennington’s challenge to the
testimony on hearsay and confrontation grounds fails. See State v. Rucker, 1st Dist.
Hamilton No. C-110082, 2012-Ohio-185, ¶ 37.
{¶55} During redirect examination, the state also asked Dr. Stephens a follow-up question about her consultation with other pathologists. But because
defense counsel had opened the door to the question, the trial court properly allowed
it. See State v. Smith, 1st Dist. Hamilton No. C-170028, 2018-Ohio-2504, ¶ 37; State
13 OHIO FIRST DISTRICT COURT OF APPEALS
v. Robertson, 1st Dist. Hamilton Nos. C-070151 and C-070159, 2008-Ohio-2562, ¶
20.
{¶56} C. Hearsay statement of Donny McKee. During redirect
examination, the prosecutor asked McKee if he remembered telling police that, in the
morning before she was shot, Herald had called him and told him to bring the stolen
items back or Pennington was going to kill her. McKee responded that he did not
recall making such a statement.
{¶57} Pennington argues that the trial court erred by allowing the prosecutor to introduce McKee’s hearsay statement into evidence through a leading question.
He acknowledges that, in responding to the prosecutor’s question, McKee did not
endorse the statement, but Pennington claims that its introduction was prejudicial
because it was the “only suggestion throughout the trial” of his motivation
to kill Herald.
{¶58} Pennington did not object to the prosecutor’s question, and therefore has forfeited all but plain error. See Crim.R. 52(B). Moreover, the question itself
was not evidence. See State v. Sandercock, 11th Dist. Ashtabula No. 2017-A-0061,
2018-Ohio-2448, ¶ 21; State v. Siller, 8th Dist. Cuyahoga No. 90865, 2009-Ohio-
2874, ¶ 58. And we presume that “the trial court can distinguish between what a
witness actually testifies to and what the state tries to get the witness to say even
when defense counsel failed to object.” State v. Alghaben, 8th Dist. Cuyahoga No.
86044, 2005-Ohio-6490, ¶ 30. Indeed, the trial court had already sustained a
defense objection to the same question during the prosecutor’s direct examination of
McKee. Also, contrary to Pennington’s claim, there was ample other evidence in the
record revealing Herald’s fear that Pennington would harm her. See Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 210. No plain error occurred.
{¶59} D. Other-acts evidence. Pennington argues that the trial court
abused its discretion by admitting other-acts testimony about a prior allegation of
14 OHIO FIRST DISTRICT COURT OF APPEALS
domestic violence in violation of Evid.R. 404. In addition, he asserts that the there
were “no legitimate reasons to allow the prosecutor to ask about” the prior allegation.
{¶60} Defense counsel asked defense witness Teaionna Richmond over objection if Pennington had ever been violent with her. She responded, “No, never
violent, never raised a voice or anything.” On cross-examination, the prosecutor
asked if she knew whether Pennington had beaten any of his other girlfriends, and
she said no. Defense counsel objected when the prosecutor then asked about a
domestic-violence complaint issued in 2004 in which a former girlfriend alleged that
Pennington had struck her, and asked whether that would change the witness’s
opinion of Pennington. The trial court overruled the objection, stating that the
defense had “opened the door” to the question. Richmond responded, “Not from
what I know of him.”
{¶61} Pennington asserts that the state improperly introduced evidence of a domestic-violence allegation for which he had not been convicted for the improper
purpose of proving that he had acted in conformity with it. He contends that, even if
he had been convicted of the 2004 domestic-violence offense, Evid.R. 609 would not
have permitted the conviction to be used for impeachment purposes because it was
too remote in time, exceeding the rule’s ten-year time limit on such evidence.
{¶62} We note that, contrary to Pennington’s assertion, no evidence of the prior domestic-violence allegation was admitted. The prosecutor asked the witness
about the allegation, but did not introduce evidence related to it. We assume that the
court did not consider any such prior allegation. We will, however, consider
Pennington’s assignment of error as challenging the trial court’s allowing of the
prosecutor’s question.
{¶63} Under Evid.R. 404(A), character evidence is not admissible to prove action in conformity therewith. State v. Morgan, 1st Dist. Hamilton No. C-160495,
2017-Ohio-7489, ¶ 9. But under Evid.R. 404(A)(1), “[e]vidence of a personal trait of
15 OHIO FIRST DISTRICT COURT OF APPEALS
character offered by an accused, or by the prosecution to rebut the same is
admissible.” So if a defendant presents evidence of a specific character trait, the door
is opened for the prosecution to rebut that evidence. Id.
{¶64} For example, if a defendant presents evidence of her or his good character, the defendant opens the door for the state to rebut that claim. And under
Evid.R. 405(A), the state may do so by inquiring into relevant specific instances of
the defendant’s past conduct. See State v. Collins, 97 Ohio App.3d 438, 450, 646
N.E.2d 1142 (8th Dist.1994). Evidence of a defendant’s prior arrest for a violent
offense may be offered to impeach the character witness’s testimony that the
defendant had a reputation for nonviolence, even if the prior arrest did not result in a
conviction. State v. Sims, 3 Ohio App.3d 321, 323-324, 445 N.E.2d 235 (8th
Dist.1981); see State v. Hart, 72 Ohio App.3d 92, 98, 593 N.E.2d 463 (10th
Dist.1991), citing Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93
L.Ed. 168 (1948).
{¶65} Contrary to Pennington’s assertion, the ten-year limitation under Evid.R. 609 on the use of a prior conviction for impeachment purposes does not
apply if it is being used as a prior specific instance of conduct pursuant to Evid.R.
405. See Hart at 99. Under Evid.R. 609, evidence of a prior conviction is admissible
in certain circumstances for the purpose of attacking the witness’s own credibility,
whereas under Evid.R. 405(A), “allowing cross-examination of character witnesses
as to their having heard of prior convictions or arrests of a defendant shows whether
he has knowledge of defendant’s reputation and whether that knowledge influences
his opinion in any way.” Id., quoting United States v. Edwards, 549 F.2d 362, 367
(5th Cir.1977).
{¶66} Here, the defense opened the door to the prosecutor’s question about the 2004 domestic-violence complaint when defense counsel asked Richmond if
Pennington had ever been violent with her. So the trial court properly allowed cross-
16 OHIO FIRST DISTRICT COURT OF APPEALS
examination about Pennington’s prior arrest under Evid.R. 405(A) because it was
offered to challenge the character witness’s testimony about Pennington’s non-
violence. See Sims at 323-324.
{¶67} E. Pennington’s claims related to the admission of evidence fail. Because the trial court did not commit error, plain or otherwise, in admitting the
challenged evidence, we overrule the second assignment of error.
III. Prosecutorial Misconduct
{¶68} In his third assignment of error, Pennington argues that the prosecution violated his right to due process by engaging in misconduct. Generally,
prosecutorial misconduct will not provide a basis for overturning a conviction unless,
on the record as a whole, the misconduct can be said to have deprived the defendant
of a fair trial. See McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at
¶ 257. The test for whether prosecutorial misconduct mandates reversal is whether
the prosecutor's remarks or actions were improper, and, if so, whether they
prejudicially affected the substantial rights of the accused. State v. Smith, 97 Ohio
St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45.
{¶69} A. Impeachment during redirect examination. Pennington asserts that “the state improperly impeached Donny McKee by threatening him with
prosecution if he did not testify as they wished.” He points to the prosecutor’s
questions on redirect examination about a conversation that McKee had with
prosecutors and a detective a few days before trial. Pennington failed to object, so
his challenge to the prosecutor’s conduct is reviewed for plain error. See id.
{¶70} We conclude that the defense opened the door to the prosecutor’s questions when defense counsel asked on cross-examination if McKee had felt
threatened by the prosecutors and detective during that conversation. The
prosecutor followed up with questions about the conversation, the tenor of which
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was that McKee had been admonished to tell the truth at trial. We presume that the
trial court properly considered McKee’s testimony, and conclude that no plain error
occurred.
{¶71} Pennington also points again to the prosecutor’s question on the redirect examination of McKee about the statement he made to police shortly after
Herald’s murder about her fear of Pennington. Because he did not object to the
question, he cannot predicate error on it unless the trial court’s failure to intercede
amounted to plain error. See State v. Jones, 1st Dist. Hamilton No. C-160826, 2018-
Ohio-1130, ¶ 12. As we explained in our resolution of the second assignment of error,
the trial court did not commit plain error by permitting the question.
{¶72} B. Questioning of a defense witness. Pennington argues that the prosecutor improperly questioned Teaionna Richmond about his 2004 domestic-
violence arrest. We conclude that the prosecutor’s conduct did not amount to plain
error because, as we previously explained, the evidence was admissible after
Pennington opened the door with evidence of his nonviolent character.
{¶73} C. No prosecutorial misconduct occurred. Because the prosecutor
did not act improperly in questioning Richmond, and because no plain error
occurred in the prosecutor’s questioning of McKee, no misconduct occurred. We
overrule the third assignment of error.
IV. Weight and Sufficiency
{¶74} In his fourth assignment of error, Pennington challenges the weight and sufficiency of the evidence upon which his murder conviction was based.
Specifically, he argues that the state failed to prove that he shot Herald.
{¶75} In a challenge to the sufficiency of the evidence, the question is whether, after viewing the evidence in a light most favorable to the state, any rational
trier of fact could have found all the essential elements of the crime proved beyond a
18 OHIO FIRST DISTRICT COURT OF APPEALS
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. When considering a challenge to the weight of the
evidence, the court must examine the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997).
{¶76} Construing the evidence presented at trial in a light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable
doubt that Pennington had purposely killed Herald, in violation of R.C. 2903.02(A).
After discovering that his ring was taken, Pennington was so angry with Herald that
he texted McKee to say that Herald’s life was his until he got his ring back. And
Herald’s text messages to McKee, her mother, and a friend, confirmed how angry
Pennington was about it.
{¶77} In addition, Herald’s text messages to Burles indicated that she was ready to leave Pennington’s home just minutes before she was shot. And in his 911
call, Pennington explained how Herald may have obtained a gun before relaying the
crucial information about her being shot. Then he lied to the dispatcher about the
handgun and the shotgun, and he lied about the guns during his later interview with
police.
{¶78} And despite Pennington’s claim to police that after he heard the gunshot and ran to his room, he had “instantly” grabbed the handgun and thrown it
on a shelf, two experienced investigators testified that the gun was too clean for
Herald to have shot herself. Pennington’s calm demeanor immediately after the
shooting stood out as unusual to a responding officer. And Dr. Stephens explained
her conclusion that the manner of death was homicide.
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{¶79} Moreover, the trial court, as the trier of fact, was in the best position to judge the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus. The court was entitled to reject
Pennington’s claim to police that he had been downstairs when the shooting
{¶80} Consequently, we hold that the record contained sufficient evidence to convict Pennington of murder, and his conviction was not against the manifest
weight of the evidence. We overrule Pennington’s fourth assignment of error.
V. Cumulative Error
{¶81} In his fifth assignment of error, Pennington argues that the cumulative effect of the trial errors deprived him of a fair trial. But since there were not multiple
instances of harmless error in the trial, the cumulative-error doctrine does not apply.
See State v. Leach, 150 Ohio App.3d 567, 2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st
Dist.). We overrule the fifth assignment of error.
Conclusion
{¶82} Therefore, we dismiss the appeal in the case numbered C-170199, and we affirm the judgment of the trial court in the appeal numbered C-170200.
Judgment accordingly.
MOCK, P.J., and DETERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.