State v. Harrell

[Cite as State v. Harrell, 2022-Ohio-3740.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111293

v. :

DEVAL H. HARRELL, SR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: October 20, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-21-656650-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Morgan Austin, Assistant Prosecuting

Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and

Robert B. McCaleb, Assistant Public Defender, for

appellant.

CORNELIUS J. O’SULLIVAN, JR., J.:

Defendant-appellant Deval Harrell, Sr., challenges his convictions for

felonious assault, kidnapping, and failure to comply, which were rendered after a

jury trial. He also contends that the trial court erred in relying on an old

presentence-investigation report for the purpose of sentencing, rather than ordering

a new one. After a thorough review of the facts and pertinent law, we affirm.

Factual and Procedural History

In February 2021, appellant was indicted on the following counts:

Count 1, felonious assault; Count 2, kidnapping; Count 3, failure to comply; Count

4, resisting arrest; Count 5, tampering with evidence; Count 6, possessing criminal

tools; and Count 7, drug trafficking. The case proceeded to a jury trial at which the

following facts were adduced.

On January 29, 2021, various government agents from the Ohio

Investigative Unit, the Cleveland police, and the United States Bureau of Alcohol,

Tobacco, Firearms, and Explosives had been conducting a drug interdiction

operation in a particular area surrounding St. Clair Avenue in Cleveland. One of the

agents involved in the operation, Robert Boldin, testified that earlier that night he

noticed an individual, later identified as Teal Johnson, driving along St. Clair

Avenue, pulling onto various gas station lots but not stopping to get gas or anything

from the accompanying stores.1 Agent Boldin testified that he and other agents

1 Agent Boldin was an assistant agent in charge of the Cleveland District Office of the Ohio

Investigation Unit. The Ohio Investigation Unit is a state law enforcement agency that

conducts state-level investigations focused primarily on vice crimes involving narcotics,

gambling, prostitution, and liquor. Agent Boldin completed basic peace officer training

in 1993, and at the time of trial, had 28 years of law enforcement experience, which

included experience in local police departments and as a narcotics detector canine

handler. He has served on a multiple-county drug task force and has had advanced

training in narcotics investigations.

followed Johnson discreetly from station to station and eventually to a Shell station

on the corner of East 115th Street and St. Clair Avenue where she met appellant.

Johnson testified that she pulled up to a pump, and appellant pulled up

to the pump on the opposite of her and asked her if she “liked to party,” which she

took to mean that he was offering to sell her drugs. Johnson testified that she was a

recently relapsed drug addict and, based on her belief that appellant was offering to

sell her drugs, she got in his vehicle.

Agent Boldin saw Johnson get into the rear of appellant’s vehicle and

saw appellant turn all the way around in the driver’s seat and reach with his left hand

towards the back seat where Johnson was. Based on his previous observations of

Johnson, as well as what he observed inside appellant’s vehicle, Agent Boldin

determined that there was reasonable suspicion of a possible drug transaction and

announced his intention to approach appellant’s vehicle; the agent radioed for back-

up assistance.

Back-up law enforcement assistance arrived and maneuvered their

vehicles in a position so as to prevent the potential flight of appellant. Agent Boldin

parked his vehicle in front of appellant’s vehicle, and another agent parked to the

rear of appellant’s vehicle. Agent Boldin testified that, although the law enforcement

officials were in undercover vehicles, the vehicles were equipped with either sirens

or police lights or both, which were activated as the officials responded to the scene.

After the officials responded to the scene, appellant reversed his vehicle and hit the

agent’s vehicle parked behind him.

Agent Daniel Mone testified as to what transpired next.2 Upon seeing

appellant strike Agent Phillips’s vehicle, Agent Mone approached the driver’s

window of appellant’s vehicle with his service weapon drawn and ordered appellant

to put his vehicle in park and turn it off. Agent Mone also banged on the window of

appellant’s vehicle and told him to not put the vehicle in drive and to keep his hands

off the steering wheel. Agent Mone and appellant made eye contact. At that time,

the agent had one foot on the running board of appellant’s vehicle and the other foot

on the ground. According to Agent Mone, appellant sat in his vehicle for a moment

as if he were contemplating whether he was going to comply with the agent’s

commands. Ultimately, appellant did not follow any of Agent Mone’s commands

and, instead, put his vehicle in drive, turned the wheel, and accelerated.

Agent Mone testified that appellant turned his steering wheel so hard

that Agent Mone was thrown off appellant’s vehicle and pushed into another vehicle

on the scene. The agent explained that he was pinched in between the other vehicle

and appellant’s vehicle and thought he was going to get crushed between the two

vehicles. Agent Mone’s right buttock was on the other vehicle while the front of his

right thigh was on appellant’s vehicle. The agent testified that the impact hurt, but

admitted that it was “not extremely painful” and that he suffered only minor bumps

and bruises from being pushed up and pinned between the two cars. Appellant sped

2 Agent Mone was an enforcement agent with the Cleveland District of the Ohio

Investigation Unit. He completed basic police officer training, as well as three weeks

orientation and six months field training with the Investigation Unit. He had been

employed with the Unit for eight years, and at the time of the incident was a member of

the FBI gang task force.

away from the gas station. His vehicle “jumped” the gas station’s curb, and struck a

utility pole wire. Appellant then sped down the street. Video surveillance from the

gas station captured much of the above-described events and was played for the jury.

See state’s exhibit Nos. 2 and 3.

Johnson was still in the vehicle. She testified that, in the moments

leading up to appellant speeding away, she saw “a lot of cars come screeching in at

one time and [she] didn’t know what it was.” However, she “just happened to look

up and * * * saw a little—the red and blue * * * small light * * * flashing, and [she]

realized they were all police.” Johnson testified that upon realizing the cars were the

police, she said out loud “[w]ell, these are the police in front of us.” Appellant then

sped away. Johnson admitted that she voluntarily got into appellant’s vehicle, but

testified that she did not want to be in the car when the police arrived and that she

was unable to get out of the vehicle once appellant sped away because “we were just,

like, going too fast * * * I wouldn’t be able to just jump out of the car. I wouldn’t get

out while we’re speeding away. I mean, without probably killing myself.”

Shortly after speeding away from the gas station, appellant lost control

of his vehicle, drove into a vacant lot, and crashed into a fence. Appellant fled the

scene and was apprehended after a 20-30 minute search. Johnson was unable to

get out the vehicle and the police had to remove her through a window.

Appellant testified. He admitted that he has prior convictions for

receiving stolen property, conveyance of illegal substances in a detention center, and

drug trafficking. His last conviction was around 2011, and he testified that he has

not been involved with drugs since then.

In regard to this case, appellant testified that he was driving on St.

Clair Avenue, on his way to his brother’s house, when he noticed a “nice-looking”

lady (Johnson) at the Shell gas station and decided to stop to talk to her. Appellant

pulled up to the opposite side of the pump where Johnson was and asked her if she

liked to party; Johnson responded “yes.”

According to appellant, Johnson got out of her vehicle and went into

the gas station store, he presumed to pay for her gas. He testified that while she was

in the store he was finding music to play and did not look out of his window at all.

Johnson came back to his vehicle, and he told her to get in the back because the front

passenger seat was wet. Upon Johnson getting in the back, appellant immediately

turned around to talk to her. The next thing appellant saw were “bright lights.”

Appellant denied that he saw red or blue flashing lights or the police. Rather, he

thought he was being robbed and he fled because of his “street instincts.”

Appellant testified that he did not see any of the law enforcement

officials on the scene and did not hear any of their commands because he was turned

around and the music was turned up loud. He said he asked Johnson if she knew

what was going on. He could not hear her answer, but read her lips that she did not.

He testified that if he had known the police were there he would have stopped

because he was not doing anything wrong.

On cross-examination, the assistant prosecuting attorney played the

surveillance video from the gas station for appellant. Appellant admitted seeing the

police on the video. He described one officer as “pretty much kissing the window”

of his (appellant’s) vehicle and another officer as “pretty much like on the window.”

Appellant reiterated that at the time of the within incident he was not trafficking in

drugs, having stopped that activity years prior.

On this evidence, the jury returned verdicts of guilty on Count 1,

felonious assault, Count 2, kidnapping, and Count 3, failure to comply. The jury

returned a verdict of not guilty on Count 4, resisting arrest.3 The trial court

sentenced appellant to an eight-year prison term. This appeal ensues, with

appellant raising the following three assignments of error for our review:

I. The convictions on Counts 1 and 2 were obtained on insufficient evidence.4

II. The trial court erred when it permitted the government to impeach Mr.

Harrell’s credibility under Evid.R. 609 without first balancing the

probative value against the risk of prejudice.

III. The trial court erred when it failed to order a new pretrial investigation

report and, rather than proceeding without one, used an old one. This

error denied Mr. Harrell his right to due process of law.

Law and Analysis

In his first assignment of error, appellant contends that his felonious

assault and kidnapping convictions are not supported by sufficient evidence.

3

The state dismissed Counts 5, 6, and 7, tampering with evidence, possessing

criminal tools, and drug trafficking, respectively.

4 Appellant does not challenge his failure to comply conviction (Count 3) on the

ground of sufficiency of the evidence; his challenge to that count is encompassed under

his second assignment of error under which he seeks a new trial.

The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). “On review for sufficiency, courts are to assess not whether the State’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Dyer, 8th Dist. Cuyahoga No. 88202, 2007-

Ohio-1704, ¶ 24, citing Thompkins at 390.

Felonious Assault

Appellant was charged with felonious assault under R.C.

2903.11(A)(2), which provides that “[n]o person shall knowingly * * * [c]ause or

attempt to cause physical harm to another * * * by means of a deadly weapon or

dangerous ordnance.” According to appellant, the evidence was insufficient to show

that he knowingly used his vehicle as a deadly weapon and that he knowingly caused

or attempted to cause harm to Agent Mone.

“Knowingly,” for purposes of R.C. 2903.11, is defined in R.C.

2901.22(B) as follows:

A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or

will probably be of a certain nature. A person has knowledge of

circumstances when the person is aware that such circumstances

probably exist. When knowledge of the existence of a particular fact is

an element of an offense, such knowledge is established if a person

subjectively believes that there is a high probability of its existence and

fails to make inquiry or acts with a conscious purpose to avoid learning

the fact.

A “deadly weapon” is “any instrument, device, or thing capable of

inflicting death, and designed or specifically adapted for use as a weapon, or

possessed, carried, or used as a weapon.” R.C. 2901.22(A). It is well-established

that a vehicle, “when used in a manner likely to produce death or great bodily harm,

can be classified as a ‘deadly weapon’ under R.C. 2923.11.” State v. Sternbach, 8th

Dist. Cuyahoga No. 100653, 2014-Ohio-4203, ¶ 24, citing State v. Tate, 8th Dist.

Cuyahoga No. 87008, 2006-Ohio-3722, ¶ 23, citing State v. Troyer, 8th Dist.

Cuyahoga No. 61983, 1993 Ohio App. LEXIS 1791 (Apr. 1, 1993); see also State v.

Dupuis, 6th Dist. Lucas No. L-12-1035, 2013-Ohio-2128, ¶ 61, citing State v.

Griffith, 8th Dist. Cuyahoga No. 97366, 2013-Ohio-256, ¶ 13 (“In Ohio, a vehicle,

such as a car or minivan, is recognized as a ‘deadly weapon’ as set forth in R.C.

2901.22.”).

Appellant contends that the “evidence in this case was insufficient to

show that [he] ‘used’ his automobile knowingly as a ‘deadly weapon’ under the

circumstances.” He cites a number of cases in which he contends that, unlike this

case, there was “clear evidence of [a] specific intent to use the car as a deadly

weapon.” Appellant compares those cases to this case, where he contends he “lightly

bumped an unoccupied police vehicle, causing only,” as Agent Boldin described it,

“nondisabling, nonmechanical cosmetic damage.” Appellant further contends that

in regard to Agent Mone, the agent testified that appellant “nearly” hit him, causing

him “to bump into a car behind him, but not causing [him] any physical harm.”

Thus, according to appellant the record only demonstrates that he was attempting

to flee; it does not demonstrate felonious assault. We disagree.

In regard to appellant’s claim of lack of injury to anyone, the record

belies his contention. Agent Mone testified that he was “pinched” between

appellant’s vehicle and another vehicle. The agent’s leg was pinned between the two

vehicles while his right buttock was against one vehicle and the front of his right

thigh was pressed against the other vehicle when he was thrown off the running

board of appellant’s vehicle. Although Agent Mone was not seriously injured, he did

testify that the impact hurt and that he suffered minor bumps and bruises as a result.

“Physical harm” means any injury regardless of its gravity or duration. R.C.

2901.01(A)(3). The evidence in this case is sufficient to support a finding of physical

harm.

Moreover, the statute prohibits causing or attempting to cause

physical harm. The evidence was sufficient to demonstrate that appellant attempted

to cause physical harm. (See State v. Brown, 8th Dist. Cuyahoga No. 90398, 2008-

Ohio-23668, ¶ 14 (sufficient evidence supported felonious assault conviction under

R.C. 2903.11(A)(2) where police pulled in driveway behind defendant’s vehicle,

defendant put his car in reverse, and police had to put their cruiser in reverse to

avoid being hit).)

We are also not persuaded by appellant’s contention that, at most, the

evidence only supported a fleeing charge. This court has held that “‘[f]elonious

assault has been established where the accused strikes a police car during a high

speed chase, yet claims he was merely attempting to flee * * * and has also been

established where the accused accelerates toward a police officer, but claims to have

done so without the requisite mental state.’” State v. Prince, 8th Dist. Cuyahoga No.

61342, 1992 Ohio App. LEXIS 5844, *4-*5 (Nov. 19, 1992), quoting State v. Bernard,

8th Dist. Cuyahoga No. 59452, 1991 Ohio App. LEXIS 5875, *6 (Dec. 5, 1991), citing

State v. Townsend, 8th Dist. Cuyahoga No. 56571, 1990 Ohio App. LEXIS 600 (Feb.

22, 1990), and State v. Buford, 8th Dist. Cuyahoga No. 57213, 1990 Ohio App.

LEXIS 2838 (July 12, 1990).

Thus, the state presented sufficient evidence, if believed, to support

the felonious assault conviction.

Kidnapping

Appellant was convicted of kidnapping under R.C. 2905.01(B)(1),

which provides that “[n]o person, by force, threat, or deception * * * shall knowingly

* * *, under circumstances that create a substantial risk of serious physical harm to

the victim, * * * [r]emove another from the place where the other person is found[.]”

Relying on Johnson’s testimony that she voluntarily got into appellant’s vehicle,

appellant contends that the evidence was insufficient to demonstrate that he used

force, threat, or deception to remove Johnson from the place where she was found.

We disagree.

R.C. 2901.01(A)(1) defines force as “any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” This

court has previously explained that

Ohio law is clear that “[a]n offense under R.C. 2905.01 does not depend

on the manner in which an individual is restrained. * * * Rather, it

depends on whether the restraint ‘is such as to place the victim in the

offender’s power and beyond immediate help, even though

temporarily.’ * * * The restraint ‘need not be actual confinement, but

may be merely compelling the victim to stay where he [or she] is.’”

State v. Mosley, 178 Ohio App.3d 631, 2008-Ohio-5483, 899 N.E.2d

1021[(8th Dist.)], citing State v. Wilson, 10th Dist. Franklin No. 99AP-

1259, 2000 Ohio App. LEXIS 5057 (Nov. 2, 2000).

State v. Wright, 8th Dist. Cuyahoga No. 92344, 2009-Ohio-5229, ¶ 24.

In State v. Ryan, 8th Dist. Cuyahoga No. 108143, 2019-Ohio-5339,

this court upheld a kidnapping conviction in an instance where the victim

voluntarily got into the defendant’s vehicle. In Ryan, the victim voluntarily got into

the defendant’s, her then- boyfriend’s, vehicle. The defendant was upset with the

victim and began assaulting her. The victim testified as to being under the

defendant’s power and beyond immediate help. She explained that he was driving

in an “‘insane’ manner.” Id. at ¶ 5. He “was trying to beat me up with the car, not

just his hands. * * * [he was] slamming on the brakes, trying to get around other

cars, trying to go fast.” Id. The victim testified that she repeatedly tried to get out

of the car, but the defendant would speed up, making it “impossible.” Id.

The defendant in Ryan was convicted of felonious assault and

kidnapping. On appeal, he admitted that he assaulted the victim, but challenged his

kidnapping conviction. This court upheld the conviction, finding “[a]lthough [the

victim] initially voluntarily got into the car with [the defendant], she testified that

she attempted to get out after he started assaulting her, but he would speed up,

making it impossible for her to do so. The record shows that Ryan restrained her of

her liberty for the purpose of terrorizing her and inflicting serious physical harm on

her.” Id. at ¶ 27.5

Further, appellee cites State v. Haynes, 6th Dist. Wood No. WD-19-

035, 2020-Ohio-6977, for the proposition that the physical act of driving a person

away from the place where they were found can constitute force. We agree with the

Sixth District’s reasoning.

In Haynes, the defendant picked up two of his grandsons from a

friend’s house and directed his wife to pick up his third grandson from school. All

three children voluntarily entered the vehicles and were driven away from the place

where they were found. Haynes did not have legal custody of the children and was

aware that the children’s father was on his way to get the children from the

respective places where they were. The defendant was convicted of abduction. On

appeal, he contended that state failed to present sufficient evidence of force to

support the abduction convictions.

The appellate court disagreed with the defendant. It noted that R.C.

2901.01(A)(1) defines force as “any violence, compulsion, or constraint physically

5 The defendant in Ryan was convicted of kidnapping under R.C. 2905.01(A)(3)

(“No person, by force, threat, or deception * * * shall remove another from the place where

the other person is found or restrain the liberty of the other person * * * [t]o terrorize, or

to inflict serious physical harm on the victim or another[.]”).

exerted by any means upon or against a person or thing” and analogized the force

used to move the children in the cars to that of burglary cases where trespass-by-

force is an element that is often met by showing a compulsion against a thing (i.e., a

door) rather than a person. (Emphasis added.)

In this case, Johnson, like the victims in Haynes, voluntarily got into

appellant’s vehicle. However, she testified that she did not want to be in the car

when the police arrived. Appellant insinuates that her testimony merely meant that

she did not want to be in trouble because her intention in getting into appellant’s

vehicle was to obtain drugs. Johnson elaborated, however, that she was unable to

get out of the vehicle once appellant sped away because “we were just, like, going too

fast * * * I wouldn’t be able to just jump out of the car. I wouldn’t get out while we’re

speeding away. I mean, without probably killing myself.” Further, both Johnson

and appellant testified that Johnson’s vehicle was at a pump when she got in

appellant’s vehicle. That testimony created a reasonable inference that Johnson

only intended to get in appellant’s vehicle to obtain drugs, not to be moved from the

place where she was found. The testimony demonstrated that Johnson was under

appellant’s power and beyond immediate help; she was compelled to stay in the

vehicle. The state presented sufficient evidence, if believed, to support the

kidnapping conviction.

The first assignment of error is overruled.

In his second assignment of error, appellant contends that the trial

court erred by allowing the state to impeach him without first balancing the

probative value of the testimony against the risk of prejudice.

Evid.R. 609(A)(2) permits the admission of prior convictions — with

some limitations not at issue here — provided that the probative value outweighs the

danger of unfair prejudice, confusion of the issues, or misleading the jury, and the

evidence is not excluded by the court in its discretion under Evid.R. 403(B). State

v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059d, 796 N.E.2d 506, ¶ 27.

Further, Evid.R. 403(A), provides that “[a]lthough 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.” The exclusion

of relevant evidence under Evid.R. 403(A) rests within the discretion of the trial

court. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 107,

citing State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the

syllabus.

On direct examination, appellant testified that he had been convicted

of receiving stolen property, conveyance of illegal substance in a detention center,

and drug trafficking. He also testified that he knew “right from wrong.” On redirect

examination, appellant testified that he cooperates with law enforcement and

admitted to his involvement in criminal activity. Regarding this case, appellant

testified that had he known the police were attempting to stop him he would have

pulled over because he was “not doing anything wrong.” The following questions

and answers ensued:

Q. Okay. And in the past when you have done things wrong * * * you’ve

been charged with crimes, right?

A. Yeah.

Q. Have you ever admitted to that?

A. Yes. I pulled over.

Q. Okay. Well, you’ve been charged with crimes in the past—

A. Yes.

Q. –that we talked about, right?

A. Yes.

Q. And did you admit your involvement in those crimes?

A. Yes.

Q. And why did you admit your involvement in those crimes?

A. Because I knew I did wrong.

Q. And conversely, do you believe you did anything wrong here?

A. No.

Tr. 636.

On recross-examination, the assistant prosecuting attorney sought to

question appellant about specific instances when appellant’s contentions about

cooperativeness and doing the right thing were not authenticated by his actions.

Defense counsel objected and the trial court and counsel for the parties engaged in

a lengthy discussion about the state’s desired line of questioning. At the conclusion

of the discussion, the trial court ruled as follows:

All right. The Court’s going to overrule the defense’s objection and

allow any inquiry, not to the specifics, but in the past when [appellant

has] been stopped by the police * * * [has he] run and not complied and

* * * had to be caught. And had to be chased and caught. * * * And

then we’ll see what his answer is. * * * [I]f he answers yes, that’s the

end of it. Okay?

***

If he answers no and [the state] wants to follow up on cross, you do so

only after permission of the Court. We’ll decide if you meet the answer

or if you’re allowed to continue.

Tr. 658.

The trial court also allowed the state to question appellant as to

whether he had ever been dishonest with law enforcement about a crime, and

admonished the state that “[i]f the answer is yes * * * that’s the end of it. Then you

move on. We’re not going to retry those cases.” Id. at 659.

The following questioning ensued:

Q. Mr. Harrell, you testified that in the past if you knew police were

stopping you, you would comply, isn’t that true?

A. Yes.

Q. Isn’t it true in the past that you haven’t always complied with police

when they’ve attempted to stop you?

A. Not to my understanding.

Id. at 661.

The state then sought, and the trial court granted, permission for

further questioning about a prior incident in which appellant fled from the police.

Appellant testified as to the circumstances regarding that incident, and as the state

attempted to further question him, the trial court ended the line of inquiry stating,

“Counsel, that’s enough. Let’s go on to another subject. Let’s stick with this trial.”

In regard to appellant’s truthfulness with the police, appellant’s

testimony appears to be that on a prior occasion when he was being arrested, he was

searched before being placed in a police cruiser. As he was being booked into jail

“the detention office checked [his] fifth pocket and that’s when he seen [he] had

some marijuana in [his] fifth pocket.” Appellant admitted that the police at the jail

asked him if he had contraband on his person and he figured that they had already

retrieved the marijuana, so seemingly he told them no. The trial court ended the

state’s attempt at further questioning, stating that it did not “want to try that case.”

On this record, appellant opened the door to the state’s line of

questioning and it was permissible under the rules of evidence. Further, the trial

court properly limited the questioning so that appellant would not be unfairly

prejudiced.

The second assignment of error is overruled.

In his third assignment of error, appellant contends that the trial court

erred by failing to order a new presentence-investigation report. We disagree.

After the jury’s verdict, and prior to sentencing, the defense requested

a presentence-investigation report, so that counsel would “be able to have whatever

tools [counsel] needed” at sentencing. The court responded,

I agree, you should have the tools, but the presentence report, all it’s

going to do is rehash [appellant’s] prior history which we have from all

these other presentence reports. We have his 50 thereabouts arrest

records, cycles. We have the social history.

Tr. 816-817.

The trial court denied the defense’s request and gave the defense

several days to prepare for sentencing. The trial court told the defense that if it

needed to delve into anything further on behalf of appellant it should “file a motion

and I’ll entertain it. You’ll have to articulate why.” No such motion was filed and

the trial court relied on several past presentence-investigation reports completed on

appellant, the most recent of which was six years old.

Under R.C. 2947.06(A)(1), “[t]he court shall determine whether

sentence should immediately be imposed. The court on its own motion may direct

the department of probation of the county in which the defendant resides, or its own

regular probation officer, to make any inquiries and presentence investigation

reports that the court requires concerning the defendant.”

Under Crim.R. 32.2, “[i]n felony cases the court shall, and in

misdemeanor cases the court may, order a presentence investigation and report

before imposing community control sanctions or granting probation.”

In State v. Exline, 8th Dist. Cuyahoga No. 87945, 2007-Ohio-272, this

court stated, “Crim.R. 32.2, governing presentence investigations, mandates that

such reports are required only in instances when the court imposes community

control sanctions or probation. Thus, because appellant was sentenced to a prison

term, there was no requirement that the court order a presentence investigation

report.” Id. at ¶ 26.

Here, as in Exline, the court did not impose community-control

sanctions; therefore, it was not required to order a presentence investigation.

Further, it is clear that the trial court did not impose a sentence without any prior

background information. The presentence-investigation reports, by the defense’s

own admission, included information of appellant’s prior criminal record, social

history, family history, mental-health history, and drug history. Appellant’s counsel

stated that she was able to review the reports. Counsel also provided mitigation as

to what appellant had done in the six years since the last report was completed. On

this record, the trial court did not abuse its discretion in denying appellant’s request

for a new presentence report.

The 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

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________________

CORNELIUS J. O’SULLIVAN, JR., JUDGE

SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE CONCURRING

OPINION);

EMANUELLA D. GROVES, J., CONCURS WITH MAJORITY AND WITH THE

SEPARATE CONCURRING OPINION

SEAN C. GALLAGHER, A.J., CONCURRING:

I concur fully with the decision of the majority, but write separately to

clarify Harrell’s impeachment discussion, which has potential to create confusion

based on the interplay between several evidentiary rules and the potential for this

court to adopt analysis blurring the distinction between those separate evidentiary

rules.

Harrell primarily claims the trial court failed to consider the

foundational requirements under Evid.R. 609(A) before admitting Harrell’s prior

convictions into the record. Harrell stole the state’s thunder at trial, however, and

disclosed the fact of his prior convictions in accordance with Evid.R. 609(A) in his

direct examination. The trial court was not obligated to consider the foundation for

admitting the prior convictions under Evid.R. 609(A) because any foundational

error would have been invited by Harrell. His appellate reliance on the balancing

test under Evid.R. 609(A)(2) or (3) as a basis to seek reversal of the convictions is,

therefore, misplaced. Any error in that respect was caused by Harrell, not the state

or the trial court.

Although the following is not dispositive, there are important

distinctions between the relevant evidentiary rules that should be considered by the

parties in building records and presenting appellate arguments. Evid.R. 609 is not

relevant to how the disputed testimony was admitted at trial. On redirect-

examination, Harrell testified that if he had known that police officers were

initiating the stop at the gas station on the night of his arrest, he would have

submitted to their authority as he has demonstrated through his past encounters

with police officers — conveying to the jury that Harrell respected or was willing to

submit to the authority of law enforcement officers.

In response, the state sought to question Harrell about two discrete

instances of Harrell’s past conduct: his lying to arresting officers in an effort to

conceal drugs hidden on his body during prior arrest and Harrell’s conduct in fleeing

officers attempting to detain him for possessing stolen property — both of which are

evidence of Harrell’s character for truthfulness based on his trial testimony and were

beyond the simple fact of the prior convictions themselves. So, although the state’s

impeachment inquiry touched upon the fact of the prior convictions, only questions

related to the facts underlying those convictions, and not the extrinsic evidence of

those facts, were admitted at trial.

Even though neither the parties nor the trial court expressly stated it,

the state’s line of impeachment testimony in this case is governed by Evid.R. 608(B):

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 * * *.

The trial court, while not expressly referencing Evid.R. 608(B),

nevertheless determined that the state’s questioning was probative of Harrell’s

truthfulness on the witness stand but precluded the state from presenting extrinsic

evidence to support the impeachment inquiry. Accordingly, the trial court

permitted the state to question Harrell on cross-examination about those two

specific instances of Harrell’s conduct that contradicted his self-serving, direct

testimony. See, e.g., State v. Patton, 6th Dist. Lucas No. L-12-1356, 2015-Ohio-

1866, ¶ 106 (questioning witness about wearing gang memorabilia at school was

permitted on cross-examination to impeach the witness’s claim that she lacked any

knowledge of gangs). The admission of the disputed evidence in this appeal fell

under Evid.R. 608(B), a rule that was not discussed by Harrell in this appeal.

In addition to the misplaced focus on Evid.R. 609(A), Harrell also

asks for a declaration that the admission of the state’s impeachment line of inquiry

during the cross-examination was in error because that permitted the jury to

conclude that Harrell’s “conduct in this case was in conformity with his alleged

conduct in the prior cases.” There are inherent problems with this type of argument.

There are exceptions to Evid.R. 404(A), which sets forth the

preclusion against using character evidence to demonstrate actions in conformity

with prior conduct, exceptions not acknowledged by Harrell. Importantly, there is

no dispute that the state did not seek to introduce “other acts” evidence under

Evid.R. 404(B) to prove something other than character. Accordingly, this

discussion is solely guided by Evid.R. 404(A) and the rules on impeaching a

testifying witness.

Under Evid.R. 404(A), “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” except for evidence of a pertinent character trait or the

character of the accused offered by the prosecution as rebuttal to the accused’s

introduction of evidence under subdivision (A)(1) of the rule or the prior felony

convictions of a witness introduced through Evid.R. 609(A) under subdivision

(A)(3) of the rule. See, e.g., State v. Morgan, 1st Dist. Hamilton No. C-160495, 2017-

Ohio-7489, ¶ 15 (“[T]hrough [the defendant’s] testimony that she wanted to find a

nonviolent resolution to the conflict and that she was a weak person who projected

a tough persona, she conveyed to the jury that she was, in fact, a peaceful person

who preferred to resolve conflicts in a peaceful manner,” and accordingly, the state

was permitted to rebut that implication through evidence that the defendant

previously resolved conflicts with violence under Evid.R. 404(A)(1).). Thus, for the

purposes of this appeal, any evidence introduced under Evid.R. 404(A)(1) is an

express exception to the general rule precluding the admission of the evidence for

the purpose of proving action in conformity with prior conduct.

Harrell’s entire claim, relying on the conformity language from

Evid.R. 404(A) under his analysis challenging the state’s impeachment during

cross-examination, is misplaced. Evid.R. 404(A)(1) provides an express exception

to the preclusion against proving action in conformity with prior conduct. Smith v.

Asbell, 4th Dist. Scioto No. 03CA2897, 2005-Ohio-2310, ¶ 31 (Evid.R. 404(A)(3)

“specifically states that evidence admissible under Evid.R. 609 is an exception to its

prohibition.”); State v. Martin, 12th Dist. Warren Nos. CA2002-10-111, CA2002-10-

115, and CA2002-10-116, 2003-Ohio-6551, ¶ 20 (“Use of character evidence for

impeachment under Evid.R. 609 ‘is a true exception to the policy against admitting

evidence of a character trait solely to show action in conformity with that trait.’”),

quoting State v. Mayes, 12th Dist. Madison No. CA99-01-002, 1999 Ohio App.

LEXIS 6405 (Dec. 30, 1999), and McCormick, Evidence, Section 194, 685 (5th

Ed.1999). Even if I were inclined to consider Harrell’s arguments on the merits,

which solely focus on Evid.R. 609, his argument fails to account for the exceptions

to Evid.R. 404(A) and it would be rejected of its own accord.

With these clarifications in mind, I otherwise fully concur with the

majority’s decision.