State v. Harris

[Cite as State v. Harris, 2023-Ohio-3994.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellant/ : No. 21AP-678

Cross-Appellee, No. 22AP-124

: (C.P.C. No. 20CR-3034)

v.

: (REGULAR CALENDAR)

Terrence E. Harris,

:

Defendant-Appellee/

Cross-Appellant. :

:

D E C I S I O N

Rendered on November 2, 2023

On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R.

Wilson for State of Ohio.

On brief: Carpenter Lipps & Leland LLP, and Kort

Gatterdam for Terrence E. Harris.

APPEALS from the Franklin County Court of Common Pleas

EDELSTEIN, J.

{¶ 1} This is a consolidated appeal from the judgment of conviction entered by the

Franklin County Court of Common Pleas against Terrence E. Harris after a jury found him

guilty of aggravated burglary and the trial court sentenced him to nine years in prison.

{¶ 2} Plaintiff-appellant/cross-appellee, the State of Ohio, asserts on appeal that

the definite prison term imposed was contrary to law. Specifically, the state challenges the

trial court’s judgment declaring the indefinite sentencing provisions enacted through 2018

Am.Sub.S.B. 201 (the “Reagan Tokes Law”) to be unconstitutional and argues the trial court

committed reversible error when it imposed a definite prison sentence instead.

Nos. 21AP-678 & 22AP-124 2

{¶ 3} On cross-appeal, Mr. Harris argues his conviction is not supported by

sufficient evidence and was against the manifest weight of the evidence. He also attributes

error to the trial court’s evidentiary rulings at his November 2021 jury trial, and further

contends he was deprived of the effective assistance of counsel at that trial.

{¶ 4} Because Mr. Harris’s four-cross assignments of error are not well-taken and

the Supreme Court of Ohio recently held the Reagan Tokes Law is constitutional, we vacate

Mr. Harris’s nine-year prison sentence and remand the matter for resentencing consistent

with the Reagan Tokes Law.

I. PROCEDURAL BACKGROUND

{¶ 5} On July 7, 2020, a Franklin County Grand Jury returned a three-count

indictment charging Mr. Harris with aggravated burglary, felonious assault, and

kidnapping. Because of his prior criminal convictions, repeat violent offender

specifications were included with each count. All offenses involved Mr. Harris’s on-again,

off-again girlfriend of four years, L.A., and were alleged to have occurred at the home of

L.A.’s friend, D.D., in the early morning of June 24, 2020.

{¶ 6} Trial commenced on November 2, 2021. Two days later, the jury returned its

verdict finding Mr. Harris guilty of aggravated burglary, and not guilty of felonious assault

and kidnapping. (Nov. 4, 2021 Tr. Vol. IV at 638-42.) The trial court ordered Mr. Harris

to undergo a pre-sentence investigation and advised trial counsel he would address the

repeat violent offender specification included with the aggravated burglary count at

sentencing. (Tr. Vol. IV at 643-44.)

{¶ 7} At the December 3, 2021 sentencing hearing, the parties stipulated to Mr.

Harris’s prior burglary conviction and, pursuant to R.C. 2941.149(B), the trial court

determined Mr. Harris was a repeat violent offender. (Dec. 3, 2021 Tr. Vol. V at 665-67.)

In addition to counsel, L.A. and Mr. Harris addressed the trial court before sentence was

imposed. (Tr. Vol. V at 670-83.)

{¶ 8} Aggravated burglary qualifies as a first-degree felony offense subject to

indefinite sentencing under the Reagan Tokes Law. See 2018 Am.Sub.S.B. No. 201

(effective March 22, 2019). As discussed more below, the Reagan Tokes Law requires a

sentencing court to impose an indefinite sentence consisting of a minimum and a maximum

prison term on individuals convicted of first- or second-degree felonies for which life

Nos. 21AP-678 & 22AP-124 3

imprisonment is not an available sentence. State v. Hacker, ____ Ohio St.3d ____, 2023-

Ohio-2535, ¶ 7, citing R.C. 2929.14(A)(1)(a) and (2)(a). Life imprisonment is not an

available sentence for an aggravated burglary offense. See R.C. 2911.11; R.C. 2929.14.

{¶ 9} At the sentencing hearing, however, the trial court noted it had previously

found the Reagan Tokes Law to be unconstitutional on the grounds cited in State v. Hursey,

Franklin C.P. No. 20 CR 004459, 2021 Ohio Misc. LEXIS 101 (Aug. 6, 2021). (Tr. Vol. V at

686.) And, the court expressly adopted and incorporated that finding into its sentencing

determination in this case. (See Jan. 3, 2022 Am. Jgmt. Entry at 2.) The trial court

therefore sentenced Mr. Harris to a definite prison term of nine years for the aggravated

burglary offense.1 (Tr. Vol. V at 687. See also Am. Jgmt. Entry.) We note that, at the time

of sentencing, neither this court nor the Supreme Court of Ohio had ruled on the

constitutionality of the Reagan Tokes Law. Thus, at the conclusion of the sentencing

hearing, the state noted its objection to the trial court’s unconstitutionality determination

and imposition of a definite prison sentence for the record. (Tr. Vol. V at 689-90.)

{¶ 10} On December 15, 2021, the state timely appealed from the judgment of

conviction and asserts the following sole assignment of error for our review:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

FAILING TO SENTENCE [MR. HARRIS] IN COMPLIANCE WITH

S.B. 201, THE REAGAN TOKES ACT, AS REQUIRED BY ORC

2929.144 AND, THEREFORE, THE SENTENCE IS CONTRARY TO

LAW.

{¶ 11} On February 23, 2022, Mr. Harris requested leave from this court to file a

delayed cross-appeal pursuant to App.R. 5. We granted the motion on April 14, 2022. Mr.

Harris raises the following four cross-assignments of error for our review:

[I.] THE TRIAL COURT VIOLATED [MR. HARRIS’S] RIGHTS TO

DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A

JUDGMENT OF CONVICTION BASED ON INSUFFICIENT

EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE

1 At the December 3, 2021 sentencing hearing, Mr. Harris also entered a plea of guilty to the stipulated lesser-

included offense of attempted drug possession, a felony of the fifth degree, in case No. 20CR-2106. (Tr. Vol. V

at 647-49.) In that case, the trial court imposed a 12-month prison sentence and ordered it be served

concurrently with the 9-year prison sentence imposed in case No. 20CR-3034. (Tr. Vol. V at 688.) Neither

party appeals from the final judgment entered in case No. 20CR-2106, and we find it has no relevance to our

analysis of the issues before us in this appeal.

Nos. 21AP-678 & 22AP-124 4

EVIDENCE IN VIOLATION OF [MR. HARRIS’S] RIGHTS UNDER

THE UNITED STATES AND OHIO CONSTITUTIONS.

[II.] THE TRIAL COURT ERRED IN ADMITTING THE ALLEGED

VICTIM’S NARRATIVE STATEMENT TO THE FORENSIC NURSE

EXAMINER THEREBY VIOLATING [MR. HARRIS’S] RIGHTS TO

DUE PROCESS AND TO A FAIR TRIAL AS GUARANTEED BY THE

UNITED STATES AND OHIO CONSTITUTIONS.

[III.] THE STATE OF OHIO FAILED TO COMPLY WITH RULE 16(K)

OF THE OHIO RULES OF CRIMINAL PROCEDURE BY FAILING

TO TIMELY PROVIDE A SUMMARY OF QUALIFICATIONS OF ITS

EXPERT WITNESS, AND THE TRIAL COURT SUBSEQUENTLY

ERRED AND ABUSED ITS DISCRETION IN ALLOWING THE

STATE’S EXPERT TO TESTIFY CONTRARY TO CROSS-

APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS

AND TO A FAIR TRIAL.

[IV.] [MR. HARRIS] WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF [HIS]

RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND SECTION[S] 10

AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶ 12} Mr. Harris’s four cross-assignments of error all pertain to trial-related

matters, any of which could, if sustained, render the state’s sole assignment of error

challenging the propriety of the definite sentence imposed moot. For this reason, we first

address Mr. Harris’s four cross-assignments of error. And because Mr. Harris attributes

error to a wide range of trial matters, the relevant facts are summarized within our analysis

of each cross-assignment of error.

II. ANALYSIS OF MR. HARRIS’S CROSS-ASSIGNMENTS OF ERROR

A. First Cross-Assignment of Error

{¶ 13} In his first cross-assignment of error, Mr. Harris contends the evidence at

trial was insufficient to support his aggravated burglary conviction. He also argues his

aggravated burglary conviction was against the manifest weight of the evidence. We

disagree.

1. Controlling Law and Standard of Review

{¶ 14} The issue of whether the evidence is sufficient as a matter of law to support a

conviction involves a determination of whether the state met its burden of production at

Nos. 21AP-678 & 22AP-124 5

trial. See, e.g., State v. Smith, 10th Dist. No. 03AP-1157, 2004-Ohio-4786, ¶ 16; State v.

Frazier, 10th Dist. No. 05AP-1323, 2007-Ohio-11, ¶ 7; State v. Thompkins, 78 Ohio St.3d

380, 386 (1997). We do not weigh the evidence but instead determine “ ‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. We essentially assume the state’s witnesses

testified truthfully and determine if that testimony and any other evidence presented at trial

satisfies each element of the crime. State v. Watkins, 10th Dist. No. 16AP-142, 2016-Ohio-

8272, ¶ 31, quoting State v. Hill, 10th Dist. No. 07AP-889, 2008-Ohio-4257, ¶ 41. Thus,

evidence is sufficient to support a conviction where, if believed, that evidence would allow

any rational trier of fact to conclude that the state proved each element of the offense

beyond a reasonable doubt. Frazier at ¶ 7, citing Jenks at paragraph two of the syllabus.

{¶ 15} In contrast, a manifest weight challenge attacks the credibility of the evidence

presented and questions whether the state met its burden of persuasion. See, e.g., State v.

Richey, 10th Dist. No. 17AP-260, 2018-Ohio-3498, ¶ 50, citing Eastley v. Volkman, 132

Ohio St.3d 328, 2012-Ohio-2179, ¶ 11-13, citing Thompkins at 386-87. “Although evidence

may be sufficient to sustain a guilty verdict, the issue of manifest weight requires a different

type of analysis.” State v. Walker, 10th Dist. No. 02AP-679, 2003-Ohio-986, ¶ 43.

“[W]eight of the evidence” concerns the inclination of the greater amount of credible

evidence, offered in a trial, to support one side of the issue rather than the other. State v.

Petty, 10th Dist. No. 15AP-950, 2017-Ohio-1062, ¶ 60, citing State v. Boone, 10th Dist. No.

14AP-87, 2015-Ohio-2648, ¶ 49, citing Thompkins at 387.

{¶ 16} When considering an appellant’s claim that a conviction is against the

manifest weight of the evidence, we sit as a “thirteenth juror” and may disagree “with the

factfinder’s resolution of the conflicting testimony.” Thompkins at 387, citing Tibbs v.

Florida, 457 U.S. 31, 42 (1982). See also State v. Martin, 170 Ohio St.3d 181, 2022-Ohio-

4175, ¶ 26. In making this determination, we must examine the entire record, weigh the

evidence and all reasonable inferences, consider the witnesses’ credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a

Nos. 21AP-678 & 22AP-124 6

new trial ordered. See, e.g., Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 2013-

Ohio-4153, ¶ 10; Eastley at ¶ 20; Thompkins at 387; Martin at ¶ 26.

{¶ 17} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding credibility of witnesses and the

weight of testimony are primarily for the trier of fact. See, e.g., State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus; Morris v. Ohio Dept. of Rehab. & Corr.,

10th Dist. No. 20AP-131, 2021-Ohio-3803, ¶ 64, citing Watson v. Ohio Dept. of Rehab. &

Corr., 10th Dist. No. 11AP-606, 2012-Ohio-1017, ¶ 31, citing Seasons Coal Co., Inc. v.

Cleveland, 10 Ohio St.3d 77, 80 (1984). The trier of fact is best able “to view the witnesses

and observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. at 80.

{¶ 18} To reverse a jury verdict as being against the manifest weight of the evidence,

a unanimous concurrence of all three judges on the court of appeals panel reviewing the

case is required pursuant to Article IV, Section 3(B)(3) of the Ohio Constitution. Bryan-

Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at

paragraph four of the syllabus.

2. Analysis

{¶ 19} Mr. Harris was convicted of aggravated burglary under R.C. 2911.11(A)(1),

which provides:

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 or separately occupied portion of the structure any

criminal offense, if * * * [t]he offender inflicts, or attempts or

threatens to inflict physical harm on another.

{¶ 20} The incident giving rise to this case occurred on the morning of June 24, 2020

at the home of L.A.’s childhood friend, D.D. (Nov. 2, 2021 Tr. Vol. II at 247-48, 324-25.)

Specifically, the indictment alleged that the “occupied structure” in which Mr. Harris had

trespassed was D.D.’s house, that the trespass occurred when D.D. was present, and that

Mr. Harris “attempted or threatened to inflict physical harm on” L.A. while he was inside

of D.D.’s home on June 24, 2020. (July 7, 2020 Indictment at 1.)

Nos. 21AP-678 & 22AP-124 7

{¶ 21} On appeal, Mr. Harris does not dispute that D.D.’s house was an “occupied

structure.” See R.C. 2911.11(C)(1); R.C. 2909.01(C). Nor does he deny entering D.D.’s home

on June 24, 2020. Instead, he contends the evidence presented at trial did not adequately

prove he used force to enter D.D.’s home or that he had a purpose to commit a crime while

inside. (Brief of Cross-Appellant at 18.) As described below, these two essential elements

of the aggravated burglary offense were generally established through the testimony of D.D.

and L.A., photographs taken by detectives of the apartment and L.A.’s injuries, and DNA

evidence.

{¶ 22} Testimony at trial established that, after spending the evening hanging out

with D.D. and her family at D.D.’s home on June 23, 2020, L.A. slept over in an upstairs

bedroom that night. (See Tr. Vol. II at 246-47, 326-27.) Of note, L.A. is the godmother of

D.D.’s two young daughters. (Tr. Vol. II at 247.) We also note that, at the time of the

incident, D.D. considered Mr. Harris to be a friend, had known him for a couple of years,

and knew he and L.A. had a romantic history. (Tr. Vol. II at 326.) Indeed, at the time of

the incident, Mr. Harris and L.A. were nearing the end of their on-again, off-again

relationship of four years, which L.A. testified ultimately ended around November 2020.

(See Tr. Vol. II at 244.)

{¶ 23} D.D. testified that Mr. Harris came into her home on the morning of June 24,

2020 without permission while D.D. and her boyfriend were asleep in one upstairs

bedroom and L.A. and D.D.’s two children were sleeping in another upstairs bedroom. (Tr.

Vol. II at 328-30. See also Tr. Vol. II at 247-48, 253.) L.A. and D.D. both recounted awaking

to someone loudly banging on the front door and then hearing a “big boom.” (Tr. Vol. II at

248-49, 330-33.) Although neither saw Mr. Harris at the door, D.D. testified that she knew

it was Mr. Harris because, after the banging commenced, she looked outside of her

bedroom window and saw what she knew to be Mr. Harris’s car parked outside. (Tr. Vol.

II at 330-31.)

{¶ 24} Based on what they heard, D.D. and L.A. both surmised that Mr. Harris

entered the house by kicking the front door in. (Tr. Vol. II at 248, 332-33.) Their testimony

was corroborated by photographs taken by Columbus Police Department (“CPD”) Detective

Wayne Wright, who responded to the scene later that same day. (See Tr. Vol. II at 364-68.)

A photograph of the front door’s cracked door frame was presented and admitted as an

Nos. 21AP-678 & 22AP-124 8

exhibit at trial. (State’s Ex. A-3; Tr. Vol. II at 340-41, 368-69. See also Nov. 3, 2021 Tr. Vol.

III at 536.) And, D.D. testified that she had to get her front door repaired after Mr. Harris

kicked it down and split its frame. (See Tr. Vol. II at 341-42.)

{¶ 25} D.D. attested she had not given Mr. Harris permission to enter her home that

day, and confirmed Mr. Harris did not have a key and was not on the lease for the house.

(See Tr. Vol. II at 339-41.) L.A. also confirmed she did not permit or ask Mr. Harris to come

into D.D.’s home that day. (Tr. Vol. II at 313-14.) Thus, the testimony of D.D. and L.A., if

believed, sufficiently established that Mr. Harris used force to trespass in D.D.’s home on

June 24, 2020. This is particularly true when taken in conjunction with Detective Wright’s

photographs of the cracked front door frame. For these reasons, Mr. Harris’s contention

that he “did not use force to enter” D.D.’s home is not well-taken.

{¶ 26} Mr. Harris also contends on appeal that the state failed to prove he had a

purpose to commit a crime once he entered D.D.’s home. (See Brief of Cross-Appellant at

15-18; Reply Brief of Cross-Appellant at 2-4.) But, his argument is likewise unsupported by

the record.

{¶ 27} After Mr. Harris kicked in the front door, D.D. testified that she heard—and

then saw—Mr. Harris come up the stairs. (Tr. Vol. II at 333.) Of note, Mr. Harris never

claimed that person was not him. When Mr. Harris came upstairs, L.A. was hiding in the

closet of one of the upstairs bedrooms. (Tr. Vol. II at 248-49, 332-33.) At some point, D.D.

confronted Mr. Harris, and Mr. Harris asked her where L.A. was. (See Tr. Vol. II at 249,

333.) D.D. did not respond, so Mr. Harris went to look for L.A. himself. (Tr. Vol. II at 333.

See also Tr. Vol. II at 249.) L.A. left the closet to grab her phone so she could call the police.

(Tr. Vol. II at 249-50.) However, Mr. Harris saw L.A. in the upstairs bedroom before she

was able to place that call. (See Tr. Vol. II at 250.)

{¶ 28} L.A. testified that Mr. Harris “grabbed [her] by [her] arm * * * and threw [her]

against the TV and TV stand and the closet.” (Sic.) (Tr. Vol. II at 250.) Next, she testified,

Mr. Harris “choked [her] and then picked [her] up and threw [her] back into the TV and

the stand.” (Tr. Vol. II at 250-51.) L.A. recounted thinking at that moment she was “going

to die because he was choking me.” (Tr. Vol. II at 251.) But instead, L.A. briefly blacked

out and then regained consciousness while Mr. Harris was still choking her. (Tr. Vol. II at

251.) L.A. described Mr. Harris ordering her to leave D.D.’s home with him, and, when she

Nos. 21AP-678 & 22AP-124 9

refused, L.A. testified that Mr. Harris hit her, grabbed her by the hair, dragged her down

the steps, and directed her to get into his vehicle. (Tr. Vol. II at 251-53.) Ultimately, she

complied. (Tr. Vol. II at 253, 338-39.)

{¶ 29} D.D. testified at trial about seeing Mr. Harris repeatedly hit and punch L.A.

in the face while Mr. Harris and L.A. were still in the upstairs bedroom. (Tr. Vol. II at 334-

35.) However, because her two young daughters were in the bedroom while the assault was

ongoing, D.D.’s focus was on getting her two children out of that room and downstairs to

safety. (Tr. Vol. II at 335-36.) D.D. also confirmed seeing Mr. Harris drag L.A. out of the

bedroom and down the steps by her hair. (Tr. Vol. II at 337-38.) And, she recounted

hearing Mr. Harris tell L.A. he would not leave without her. (Tr. Vol. II at 338.)

{¶ 30} Ultimately, this incident was reported to law enforcement after L.A.

convinced Mr. Harris to take her to the emergency room later in the afternoon of June 24,

2020 because she was having trouble breathing. (Tr. Vol. II at 255-56.) L.A. testified that

although she promised Mr. Harris she would not disclose that he caused her injuries, she

ultimately gave the nurse a note reporting that he did. (Tr. Vol. II at 256-58.) Significantly,

Detective Wright testified that, in his experience as a domestic violence investigator, it is

not uncommon for a domestic violence victim to go straight to the hospital after an assault

has happened rather than calling 911 while it is ongoing. (See Tr. Vol. II at 373.)

{¶ 31} After disclosing the assault to a nurse at the hospital, L.A. was interviewed by

Detective Wright (Tr. Vol. II at 364-66) and examined by forensic nurse Lauren Wood (Tr.

Vol. III at 450-69) while she was still at the hospital.

{¶ 32} Detective Wright photographed L.A.’s injuries “[t]o show she had been

strangled[,]” and testified at trial about observing “some marks on [L.A.’s] neck.” (Tr. Vol.

II at 366, 372.) Those photographs were presented at trial as State’s Exhibits A-7 through

A-9. (Tr. Vol. II at 371-73.) After speaking with L.A. at the hospital, Detective Wright and

other officers went to D.D.’s home to speak with other witnesses and to document the crime

scene itself. (Tr. Vol. II at 366-67.) His crime scene photographs were presented at trial as

State’s Exhibits A-1 through A-6. (Tr. Vol. II at 367-71.)

{¶ 33} As part of her forensic examination, Nurse Wood took a narrative statement

from L.A., collected DNA evidence from L.A. for the forensic kit, conducted a physical exam

of L.A., and took photographs of L.A.’s injuries. (See Tr. Vol. III at 454-60.) Nurse Wood’s

Nos. 21AP-678 & 22AP-124 10

forensic report was presented at trial as State’s Exhibit C and her photographs as State’s

Exhibits B-1 through B-14. (Tr. Vol. III at 452-56, 460-64.)

{¶ 34} We note that the narrative statement L.A. provided to Nurse Wood at the

hospital on June 24, 2020 was generally consistent with L.A. and D.D.’s testimony at trial

over a year later. The narrative statement indicates that L.A. described Mr. Harris kicking

in the front door; running up the stairs to look for L.A.; choking, punching, and kicking

L.A.; ordering L.A. to leave with him; and pulling L.A. down the stairs. (State’s Ex. C at 3.)

Nurse Wood testified about the unredacted narrative statement at trial (Tr. Vol. III at 455-

56) and confirmed that L.A. reported losing consciousness during the incident (Tr. Vol. III

at 465). Also significant were Nurse Wood’s observations of bruising and abrasions on both

sides of L.A.’s neck, facial swelling, petechia to L.A.’s eyes, dried blood in L.A.’s left ear,

bruising on L.A.’s left rib cage, and abrasions on L.A.’s left shoulder—about which Nurse

Wood testified at trial. (See State’s Ex. C at 4-8; Tr. Vol. III at 460-65. See also State’s Exs.

B-1 through B-14.) Nurse Wood also collected DNA samples from the left side of L.A.’s neck

and the right side of her face for the medical forensic kit. (State’s Ex. C at 4; Tr. Vol. III at

465-69.)

{¶ 35} On March 4, 2021, law enforcement obtained a DNA sample from Mr. Harris.

(Tr. Vol. III at 524.) Thereafter, the DNA samples from the medical forensic kit performed

on L.A. were submitted to CPD’s crime lab for comparison with Mr. Harris’s DNA sample.

(State’s Ex. E. See Tr. Vol. III at 521-31.) Ultimately, the CPD crime lab issued a report

finding the male DNA profile included in the sample collected from the left side of L.A.’s

neck to be consistent with Mr. Harris’s DNA standard. (Tr. Vol. III at 529-30. See also

State’s Ex. E.) The male DNA profile included in the sample collected from L.A.’s right

cheek was not of sufficient quantity or quality for comparison purposes, however. (Tr. Vol.

III at 530-31.)

{¶ 36} Although Mr. Harris may not have intended to commit a criminal offense

when he went to D.D.’s house—or even when he initially broke into the house through the

front door—the state’s evidence, if believed, established that Mr. Harris formed the intent

to commit the criminal offense of assault during the trespass. In State v. Gardner, 118 Ohio

St.3d 420, 2008-Ohio-2787, the Ohio Supreme Court held that for purposes of the offense

of aggravated burglary, the intent to commit a separate criminal offense may be formed

Nos. 21AP-678 & 22AP-124 11

during the trespass. Id. at ¶ 33, citing State v. Fontes, 87 Ohio St.3d 527 (2000), syllabus

(holding that to be guilty of aggravated burglary, “a defendant may form the purpose to

commit a criminal offense at any point during the course of a trespass”). This remains true

irrespective of the fact that the jury found Mr. Harris not guilty of the felonious assault and

kidnapping offenses also charged by the state. And, we note the jury instructions indicated

that felonious assault, kidnapping, and/or assault were the “criminal offenses at issue.” (Tr.

Vol. III at 610-11.)

{¶ 37} After reviewing the record, we find the state’s evidence, if believed,

sufficiently established that during the trespass—after Mr. Harris broke into D.D.’s house

by kicking in the front door—Mr. Harris formed the intent to assault L.A., and did, in fact,

assault L.A. Accordingly, the state established that Mr. Harris trespassed in D.D.’s home,

an occupied structure where L.A., D.D., and others were sleeping, with the purpose of

committing the criminal offense of assault, and inflicted physical harm—defined by R.C.

2901.01(A)(3) as “any injury, illness, or other physiological impairment, regardless of its

gravity or duration”—on L.A., as required to support an aggravated burglary conviction

under R.C. 2911.11(A)(1).

{¶ 38} Having found his sufficiency challenge to be without merit, we next turn to

Mr. Harris’s contention that his aggravated burglary conviction was against the manifest

weight of the evidence.

{¶ 39} In support of that challenge, Mr. Harris contends that L.A. and D.D. were not

credible witnesses for a number of reasons, and generally posits that their testimony—

provided more than a year after the incident—featured many inconsistencies. (Brief of

Cross-Appellant at 14-18.) He further suggests the jury made inconsistent determinations

about their credibility because it found him not guilty of the felonious assault and

kidnapping offenses, but guilty of the aggravated burglary offense. (Brief of Cross-

Appellant at 18.) But, the state was only required to prove Mr. Harris inflicted (or

attempted or threatened to inflict) “physical harm,” as defined by R.C. 2901.01(A)(3), on

L.A. to sustain the aggravated burglary conviction. R.C. 2911.11(A)(1). In contrast, both the

kidnapping and felonious assault offenses Mr. Harris was charged with required proof of

“serious physical harm,” as defined by R.C. 2901.01(A)(5), which is markedly different. See

Nos. 21AP-678 & 22AP-124 12

R.C. 2905.01(A)(3); R.C. 2903.11(A)(1). For this reason, Mr. Harris’s contention that the

jury made inconsistent determinations is not well-taken.

{¶ 40} Turning to Mr. Harris’s credibility arguments, we first acknowledge that

there were minor inconsistencies between the testimony presented at trial. For instance,

where D.D. was standing when Mr. Harris entered the home and how long the entire

incident lasted. (See Brief of Cross-Appellant at 15-16.) But, even though conflicting

testimony was presented at trial, a defendant “is not entitled to a reversal on manifest

weight grounds merely because inconsistent evidence was presented.” State v. Rankin,

10th Dist. No. 10AP-1118, 2011-Ohio-5131, ¶ 29. See also State v. J.E.C., 10th Dist. No.

12AP-584, 2013-Ohio-1909, ¶ 42.

{¶ 41} It is well-established that a jury may consider conflicting testimony from a

witness in determining credibility and the persuasiveness of the account by either

discounting or otherwise resolving the discrepancies. See, e.g., State v. Taylor, 10th Dist.

No. 14AP-254, 2015-Ohio-2490, ¶ 34, citing Midstate Educators Credit Union, Inc. v.

Werner, 175 Ohio App.3d 288, 2008-Ohio-641, ¶ 28 (10th Dist.). “ ‘The finder of fact can

accept all, part or none of the testimony offered by a witness, whether it is expert opinion

or eyewitness fact, and whether it is merely evidential or tends to prove the ultimate fact.’ ”

Petty, 2017-Ohio-1062 at ¶ 63, quoting State v. Mullins, 10th Dist. No. 16AP-236, 2016-

Ohio-8347, ¶ 39. See also State v. Mann, 10th Dist. No. 10AP-1131, 2011-Ohio-5286, ¶ 37,

quoting State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 Ohio App. LEXIS 2245, *7

(May 28, 1996) (“ ‘While [a factfinder] may take note of the inconsistencies and resolve or

discount them accordingly, * * * such inconsistencies do not render defendant’s conviction

against the manifest weight or sufficiency of the evidence.’ ”).

{¶ 42} Based on our review of the record, we conclude that D.D.’s testimony, L.A.’s

testimony, photographic evidence, medical evidence, and DNA evidence presented at trial

were consistent in many material respects. The state’s evidence credibly and consistently

established that Mr. Harris forcibly broke into D.D.’s house through the front door without

permission and while others were present, looked for L.A. upon his entry, and assaulted

L.A. while he was inside of the home. On appeal, Mr. Harris does not contend the state’s

evidence was inconsistent in any of these key respects.

Nos. 21AP-678 & 22AP-124 13

{¶ 43} We also recognize that some evidence presented at trial could have cast doubt

upon the credibility of L.A. and/or D.D. The record reflects, however, that Mr. Harris’s trial

counsel presented these credibility concerns to the jury through his cross-examination of

multiple witnesses at trial. He called into question the memories of L.A. and D.D. by

pointing out they had been drinking the night before. (Tr. Vol. II at 307, 344-46. See Brief

of Cross-Appellant at 14, 17.) More narrowly, Mr. Harris’s trial counsel attacked L.A.’s

credibility by emphasizing L.A.’s alcohol dependency—likely related to her untreated PTSD

from military service—to which, we note, L.A. freely admitted. (Tr. Vol. II at 277-78, 305-

08, 345-48, 357-58. See Brief of Cross-Appellant at 14, 17.) L.A. conceded she had been

drinking the night before the incident and acknowledged she did not remember, at the time

of trial, all conversations—including text message exchanges between Mr. Harris and L.A.—

that took place in the hours preceding the June 24, 2020 incident (Tr. Vol. II at 306-08).

But, L.A. also unequivocally testified she was not impaired when the incident occurred on

the morning of June 24, 2020. (Tr. Vol. II at 313.)

{¶ 44} Mr. Harris also cites to D.D. and L.A.’s failure to call 911 during the incident

to suggest their testimony about the incident was false. (See Brief of Cross-Appellant at 15-

17.) But there are many other reasons a person may not call 911—including, as Detective

Wright recognized, in domestic violence situations like this (see Tr. Vol. III at 373)—and

any implication about the import of such failure is ultimately undermined by the fact that

L.A. went to the hospital later that same day and reported the assault.

{¶ 45} “ ‘[W]here a factual issue depends solely upon a determination of which

witnesses to believe, that is the credibility of witnesses, a reviewing court will not, except

upon extremely extraordinary circumstances, reverse a factual finding * * * as being against

the manifest weight of the evidence.’ ” In re L.J., 10th Dist. No. 11AP-495, 2012-Ohio-1414,

¶ 21, quoting In re Johnson, 10th Dist. No. 04AP-1136, 2005-Ohio-4389, ¶ 26. The jury, as

trier of fact, was in the best position to consider the discrepancies in the testimony

regarding the events that took place on June 24, 2020. The jury was also in the best position

to evaluate the credibility of L.A. and D.D.’s testimony about Mr. Harris’s actions. The jury

was likewise free to reject the implication by Mr. Harris’s trial counsel that L.A. and D.D.

were not credible witnesses or otherwise failed to provide truthful testimony.

Nos. 21AP-678 & 22AP-124 14

{¶ 46} The balance of Mr. Harris’s arguments in support of his first cross-

assignment of error generally pertain to the absence of evidence that might be expected at

trial. He takes issue with detectives’ failure to collect evidence from L.A.’s phone regarding

conversations she had with Mr. Harris prior to his arrival at D.D.’s home. (Brief of Cross-

Appellant at 14.) Setting aside the speculative nature of this evidence, it follows that Mr.

Harris would have had access to the same messages on his phone, yet those were not

produced by his counsel as evidence at trial. Mr. Harris also speculates about whether the

front door had pre-existing damage, but that speculation does not refute the testimony

about Mr. Harris repeatedly banging on the door and entering D.D.’s home without

permission. (See Brief of Cross-Appellant at 15.) Mr. Harris also conjectures that because

L.A. sustained only minor injuries—when more serious injuries would be expected from

L.A.’s description of events—her credibility was somehow undermined. (Brief of Cross-

Appellant at 17-18.) But, the absence of expected evidence is not compelling when it comes

to our evaluation of the manifest weight challenge Mr. Harris makes on appeal.

{¶ 47} To assess the credibility of the state’s witnesses and evidence, the jury, as the

trier of fact, had sufficient information about the factual inconsistencies, use of alcohol the

night before the incident, L.A.’s history with alcohol, and the relationship between D.D.,

L.A., and Mr. Harris. Mr. Harris’s defense counsel also emphasized the absence of evidence

one might expect would be presented in this type of case. While Mr. Harris did not testify,

the defense’s theories at trial were that (1) L.A. asked Mr. Harris to pick her up from D.D.’s

home but she was too drunk to remember (see Tr. Vol. II at 284-85, 302, 306-08); (2) Mr.

Harris came to D.D.’s home to retrieve L.A. because L.A. told him she had been drinking

and Mr. Harris knew she should not be (see Tr. Vol. II at 346-48); (3) Mr. Harris was

actually invited inside D.D.’s home and D.D.’s front door frame was damaged prior to his

arrival (see Tr. Vol. II at 342-47); (4) at least some of L.A.’s injuries were pre-existing (see

Tr. Vol. II at 302-04), L.A. and Mr. Harris had a history of physicality between them (see

Tr. Vol. II at 349); and (5) L.A.’s injuries were not traumatic or serious (see Tr. Vol. II at

303-05, 348-57). Ultimately, the jury did not find Mr. Harris’s theories compelling enough

to render a not guilty verdict on the aggravated burglary offense.

{¶ 48} After reviewing the record and for the reasons set forth above, we cannot say

this is one of the rare cases where the trier of fact clearly lost its way in believing the

Nos. 21AP-678 & 22AP-124 15

testimony of D.D. and L.A. when it found Mr. Harris guilty of aggravated burglary.

Accordingly, we conclude Mr. Harris’s conviction is not against the manifest weight of the

evidence.

{¶ 49} For these reasons, Mr. Harris’s first cross-assignment of error is overruled.

B. Second Cross-Assignment of Error

{¶ 50} In his second cross-assignment of error, Mr. Harris contends the trial court

erred in allowing Nurse Wood to read into the record the unredacted narrative statement

L.A. provided at the hospital on June 24, 2020. When the trial prosecutor asked Nurse

Wood to read this narrative statement during her direct examination testimony, Mr.

Harris’s trial counsel “object[ed] to it as hearsay.” (Tr. Vol. III at 454.) The trial prosecutor

conceded it was hearsay but contended that because it contained statements made by L.A.

to Nurse Wood for purposes of medical diagnosis or treatment, the narrative statement in

Nurse Wood’s forensic report was admissible under the hearsay exception provided in

Evid.R. 803(4). (Tr. Vol. III at 454-55.) Mr. Harris’s trial counsel did not argue otherwise,

so the trial court permitted Nurse Wood to read the entire unredacted narrative statement

during her trial testimony. (See Tr. Vol. III at 454-56.) It stated as follows:

I woke up at a friend’s house to someone banging on the door, then

you could hear someone kicking the door and it was him. Clarified as

Terrence. He kicked in the door. He ran up the steps looking for me,

but I hid in the closet. I heard him arguing with my friend and her

boyfriend so I came out so that’s when he started assaulting me,

punching me, choking me, kicking me. He said, let’s go. I said[,] I’m

not going with you[,] so he pulled me down the steps. To diffuse the

situation outside I went and got in the back seat. Then went to my

house. My house was destroyed. He kicked in my door as well. The TVs

were all the - - off the wall, I couldn’t find my iPad. I said, where is my

iPad? He said[,] I got everything that’s valuable to you. I said, I need

to go to the emergency room I’m having a panic attack and that’s when

he brought me here.

(Tr. Vol. III at 455-56.)

{¶ 51} At the close of the state’s case, the trial court reviewed the state’s proffered

trial exhibits. (See Tr. Vol. III at 536-40.) At that time, the trial prosecutor conceded that

not all statements contained in the narrative statement from Nurse Wood’s forensic report

were admissible as statements for purposes of medical diagnosis or treatment under

Nos. 21AP-678 & 22AP-124 16

Evid.R. 803(4). (See Tr. Vol. III at 537-38.) Thus, the state offered to redact the following

sentences from the forensic report, which was presented as State’s Exhibit C:

Then went to my house. My house was destroyed. He kicked

in my door as well. The TVs were all the - - off the wall, I

couldn’t find my iPad. I said, where is my iPad? He said[,] I

got everything that’s valuable to you.

(Tr. Vol. III at 455-56. Compare Tr. Vol. III at 536-37, with State’s Ex. C.)

{¶ 52} Significantly, Mr. Harris’s trial counsel approved those redactions and

indicated he had no objection to the trial court’s admission of State’s Exhibit C—Nurse

Wood’s forensic report containing the redacted narrative statement provided by L.A. (Tr.

Vol. III at 537.)

1. Scope of Review

{¶ 53} Before analyzing the admissibility of this evidence, we must outline the scope

of our review. On appeal, Mr. Harris asserts the trial court erred and abused its discretion

by permitting Nurse Wood to read the unredacted narrative statement during her trial

testimony and in admitting the redacted narrative statement as State’s Exhibit C. He

generally contends the narrative statement should have been excluded from trial because it

contained statements that could not be attributed to medical treatment or diagnosis and

was therefore inadmissible hearsay, was needlessly cumulative, and/or improperly

bolstered L.A.’s credibility. (Brief of Cross-Appellant at 19-24.)

{¶ 54} Mr. Harris’s trial counsel did not raise or substantively address any of these

specific grounds in the court below. Evid.R. 103(A)(1) requires that a party seeking to

exclude evidence state “a timely objection or motion to strike * * * [that includes] the

specific ground of objection, if the specific ground was not apparent from the context.” See

also State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 80, citing State v. Tibbetts,

92 Ohio St.3d 146, 161 (2001), citing State v. Mason, 82 Ohio St.3d 144, 159 (1998). At

trial, Mr. Harris’s counsel timely objected to Nurse Wood reading the unredacted narrative

statement from her forensic report, but only stated “hearsay” as the specific basis for his

objection. (Tr. Vol. III at 454.) His trial counsel did not address the state’s Evid.R. 803(4)

hearsay exception argument in response to that objection and did not object to the

Nos. 21AP-678 & 22AP-124 17

admission of the forensic report containing the redacted narrative statement as evidence at

the close of trial. (Tr. Vol. III at 536-37.)

{¶ 55} In any event, we nonetheless determine that the basis for Mr. Harris’s

objection to Nurse Wood’s testimony reading from the unredacted narrative statement was

impermissible hearsay. But, Mr. Harris’s failure to renew his objection to the admission of

the redacted report forfeits all but plain error on appeal. See, e.g., State v. Payne, 114 Ohio

St.3d 502, 2007-Ohio-4642, ¶ 23. Indeed, it is well-established that “[g]enerally, when a

party fails to renew an objection at the time exhibits are admitted into evidence, that party

waives the ability to raise the admission as error on appeal, unless plain error is shown.”

Odita v. Phillips, 10th Dist. No. 09AP-1172, 2010-Ohio-4321, ¶ 56, citing Nicula v. Nicula,

8th Dist. No. 84049, 2009-Ohio-2114. See also State v. Smith, 80 Ohio St.3d 89, 107

(1997).

{¶ 56} Based on the foregoing, we conclude that Mr. Harris preserved error as to

Nurse Wood’s reading of the subsequently redacted sentences from the narrative statement

contained in her report. (Compare Tr. Vol. III at 455-56, with State’s Ex. C and Tr. Vol. III

at 536-37.) But, he has forfeited all but plain error in regard to the remainder of the

narrative statement, as well as the “needlessly cumulative” and “improper bolstering”

issues he presents for the first time on appeal.

2. Inadmissible Hearsay Analysis

{¶ 57} Although L.A.’s narrative statement to Nurse Wood contained hearsay, the

trial court concluded—without, the record suggests, first reviewing it—that the entire

narrative statement was admissible under Evid.R. 803(4). (See Tr. Vol. III at 454-56.)

{¶ 58} Evid.R. 801(C) defines “hearsay” as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” Hearsay is generally inadmissible unless an exception applies.

Evid.R. 802. Pertinent here, Evid.R. 803 excludes various items from the hearsay rule,

“even though the declarant is available as a witness,” including “[s]tatements made for

purposes of medical diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general character of the cause

or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

Evid.R. 803(4). The term “medical diagnosis” in Evid.R. 803(4) includes both physical and

Nos. 21AP-678 & 22AP-124 18

mental health diagnoses. State v. R.L.R., 10th Dist. No. 18AP-971, 2020-Ohio-4577, ¶ 16,

citing In re S.A., 12th Dist. No. CA2017-07-092, 2017-Ohio-8792, ¶ 41. See also State v.

Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 33-44.

{¶ 59} “ ‘[Evid.R.] 803(4) encompasses statements made by persons who bring the

patient to the hospital or doctor’s office, as long as the third person’s statements are in

subjective contemplation of treatment or diagnosis. * * * Where, however, circumstances

indicate the third [person] * * * is merely speculating as to facts relating to the injury,

exclusion may be warranted since the essential element of reliability is not present.’ ” State

v. Thompson, 2d Dist. No. 22984, 2010-Ohio-1680, ¶ 24, quoting Weissenberger, Ohio

Evidence Courtroom Manual 583 (2008). See also State v. Airwyke, 11th Dist. No. 2006-

T-0073, 2007-Ohio-3199, ¶ 21. The hearsay exception provided by Evid.R. 803(4) is

limited to those statements made by the patient (or third party who brought the patient to

the medical facility) that are reasonably pertinent to an accurate diagnosis and should not

be a conduit through which matters of no medical significance would be admitted. State v.

Boston, 46 Ohio St.3d 108, 121 (1989).

{¶ 60} “[A] trial court has broad discretion in the admission and exclusion of

evidence and unless it has clearly abused its discretion and the defendant has been

materially prejudiced thereby, [an appellate] court should be slow to interfere.” State v.

Hymore, 9 Ohio St.2d 122, 128 (1967). “The Ohio Supreme Court has held that the

erroneous admission of inadmissible hearsay that is cumulative to properly admitted

testimony constitutes harmless error.” Peffer v. Cleveland Clinic Found., 8th Dist. No.

94356, 2011-Ohio-450, ¶ 28, citing State v. Williams, 38 Ohio St.3d 346 (1988).

{¶ 61} In this case, the trial prosecutor recognized at the close of its case that

portions of L.A.’s narrative statement to Nurse Wood—which were read by Nurse Wood

during her direct examination—were not actually made for the purposes of seeking medical

treatment or diagnosis. (See Tr. Vol. III at 536-37.) The specific statements identified by

the trial prosecutor were as follows:

Then went to my house. My house was destroyed. He kicked

in my door as well. The TVs were all the - - off the wall, I

couldn’t find my iPad. I said, where is my iPad? He said[,] I

got everything that’s valuable to you.

Nos. 21AP-678 & 22AP-124 19

(Compare Tr. Vol. III at 455-56, with State’s Ex. C and Tr. Vol. III at 536-37.) For this

reason, the trial prosecutor redacted these statements from Nurse Wood’s forensic report

before it was admitted as an exhibit at trial. (See Tr. Vol. III at 536-37; State’s Ex. C.)

{¶ 62} On review, we agree that these statements were arguably not made for

purposes of L.A.’s medical treatment and diagnosis. Thus, they were not admissible under

Evid.R. 803(4). But even assuming the admission of such testimony was improper, we

nonetheless find it does not rise to the level of prejudicial error. Mr. Harris’s aggravated

burglary conviction stemmed from his actions at D.D.’s home—not what was alleged to have

transpired at L.A.’s home. (See Indictment.) Moreover, L.A. testified and was subject to

cross-examination about the events which these statements concern. (See Tr. Vol. II at 255-

57.) And, arguably, the first four sentences may have been otherwise admissible as other-

acts evidence under Evid.R. 404(B) and the last sentence as a party-opponent admission

under Evid.R. 801(D)(2) or statement against interest under Evid.R. 803(3).

{¶ 63} For these reasons, we conclude that—even if erroneous—Mr. Harris did not

suffer material prejudice from the admission of this testimony given the facts and

circumstances of this case.

3. Plain Error Analysis

{¶ 64} As to the remaining issues under Mr. Harris’s second cross-assignment of

error, we do not find plain error.

{¶ 65} Plain error is error that affects substantial rights. Crim.R. 52(B). For the

plain error doctrine to apply, the party claiming error must establish (1) that “ ‘an error, i.e.,

a deviation from a legal rule’ ” occurred, (2) that the error was “ ‘an “obvious” defect in the

trial proceedings,’ ” and (3) that this obvious error affected substantial rights, i.e., the error

“ ‘must have affected the outcome of the [proceedings].’ ” State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, ¶ 22, quoting State v. Barnes, 94 Ohio St.3d 21, 27 (2002). In

determining whether plain error occurred, we must examine the alleged error in light of all

of the evidence properly admitted at trial. State v. Hill, 92 Ohio St.3d 191, 203 (2001). Plain

error should be found “only in exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id., citing State v. Long, 53 Ohio St.2d 91 (1978), paragraph three

of the syllabus. See also Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 209 (1982) (“A

‘plain error’ is obvious and prejudicial although neither objected to nor affirmatively waived

Nos. 21AP-678 & 22AP-124 20

which, if permitted, would have a material adverse [e]ffect on the character and public

confidence in judicial proceedings”).

{¶ 66} Even assuming the redacted narrative statement still contained some

statements not made for purposes of medical treatment and diagnosis, any arguable error

the trial court committed in admitting those statements was harmless and therefore did not

affect Mr. Harris’s substantial rights. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-

2787, ¶ 78. As Mr. Harris acknowledges in his appellate brief, the redacted narrative

statement contained in Nurse Wood’s forensic report simply repeated what L.A. stated

during her direct in-court testimony at trial. (See Brief of Cross-Appellant at 22-23.) “ ‘Any

error in the admission of hearsay is generally harmless where the declarant of the hearsay

statement is cross-examined on the same matters and the seemingly erroneous evidence is

cumulative in nature.’ ” In re M.E.G., 10th Dist. No. 06AP-1256, 2007-Ohio-4308, ¶ 32,

quoting State v. Holloman, 10th Dist. No. 06AP-01, 2007-Ohio-840, ¶ 2. L.A. testified at

trial in open court and was subject to cross-examination. Thus, the jury had the

opportunity to view the witness and to assess L.A.’s credibility. Accordingly, any arguable

error that may have occurred in this case concerning the testimony of Nurse Wood and

admission of her redacted forensic report was harmless and does not give rise to plain error.

{¶ 67} Mr. Harris further contends that, even if admissible, testimony and evidence

about the redacted narrative statement was needlessly cumulative under Evid.R. 403(B)

because L.A. “already testified as to what allegedly happened.” (Brief of Cross-Appellant at

23.) Evid.R. 403(B) provides: “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by considerations of undue delay, or needless

presentation of cumulative evidence.” We note, however, that “Evid.R. 403(B) does not

require exclusion of cumulative evidence. The court has discretion to admit or exclude it.”

State v. Campbell, 69 Ohio St.3d 38, 51 (1994). See also State v. Obermiller, 147 Ohio St.3d

175, 2016-Ohio-1594, ¶ 59. Thus, the mere fact that evidence is repetitive does not rise to

the level of reversible error unless “the defendant has been materially prejudiced thereby.”

Id. at ¶ 61. Because it is clear Mr. Harris’s trial strategy was to attack L.A.’s credibility, we

cannot say that L.A.’s prior consistent statements to Nurse Wood about her injuries were

needlessly cumulative. Furthermore, they were clearly relevant evidence of the felonious

assault offense for which Mr. Harris was also charged.

Nos. 21AP-678 & 22AP-124 21

{¶ 68} We therefore do not believe the trial court erred by allowing the state to

introduce cumulative evidence under the facts and circumstances of this case. But, even

assuming it did, we cannot say the admission of this cumulative evidence materially

prejudiced Mr. Harris.2 Even without the narrative statement, there was overwhelming

evidence of guilt as to the aggravated burglary offense. Both D.D. and L.A. testified they

heard someone kick in D.D.’s front door, and photographic evidence of D.D.’s split door

frame corroborated their account. Both D.D. and L.A. testified that Mr. Harris entered

D.D.’s home, and Mr. Harris did not refute that claim at trial. Although Mr. Harris

maintained he had been permitted to enter D.D.’s home, D.D. unequivocally testified

otherwise. Furthermore, both D.D. and L.A. recounted Mr. Harris looking for L.A.

immediately upon his entry into D.D.’s home and, upon finding her, assaulting L.A. inside

of D.D.’s home. And, at trial, the state presented photographs, medical records, and

medical testimony about the injuries L.A. presented with at the hospital.

{¶ 69} Accordingly, based upon the foregoing reasons, we overrule Mr. Harris’s

second cross-assignment of error.

C. Third Cross-Assignment of Error

{¶ 70} In his third cross-assignment of error, Mr. Harris argues the trial court erred

in allowing the state to present expert testimony from Nurse Wood because the state failed

to timely provide Mr. Harris’s trial counsel with a summary of Nurse Woods’s

qualifications, as required by Crim.R. 16(K).

1. Controlling Law and Standard of Review

{¶ 71} Crim.R. 16 governs discovery and inspection in criminal cases. When a

discovery violation occurs, the trial court “may order such party to permit the discovery or

inspection, grant a continuance, or prohibit the party from introducing in evidence the

material not disclosed, or it may make such other order as it deems just under the

2 Although Mr. Harris generally contends that it “constituted improper bolstering of the State’s key witness[,]

[L.A.,]” he does not cite to any authority to support his contention that the bolstering here was improper. (See

Brief of Cross-Appellant at 23-24.) In fact, courts—including this one—have held that “ ‘[a] party may

introduce testimony to “bolster” or corroborate another witness’s testimony as long as the testimony is

relevant and not objectionable on specific evidentiary grounds.’ ” State v. J.W., 10th Dist. No. 12AP-345, 2013-

Ohio-804, ¶ 22, quoting State v. Hurst, 10th Dist. No. 98AP-1549, 2000 Ohio App. LEXIS 816 (Mar. 7, 2000).

See also State v. Culp, 9th Dist. No. 26188, 2012-Ohio-5395, ¶ 30 (evidence corroborating victim’s testimony

is relevant to the victim’s credibility).

Nos. 21AP-678 & 22AP-124 22

circumstances.” Crim.R. 16(L)(1). “A trial court must inquire into the circumstances

surrounding a discovery rule violation and, when deciding whether to impose a sanction,

must impose the least severe sanction that is consistent with the purpose of the rules of

discovery.” Lakewood v. Papadelis, 32 Ohio St.3d 1 (1987), paragraph two of the syllabus.

Violations of Crim.R. 16 by the state constitute reversible error “only when there is a

showing that (1) the prosecution’s failure to disclose was a willful violation of the rule, (2)

foreknowledge of the information would have benefited the accused in the preparation of

his defense, and (3) the accused suffered some prejudicial effect.” State v. Joseph, 73 Ohio

St.3d 450, 458 (1995).

{¶ 72} A trial court has broad discretion over discovery matters, which means we

review a trial court’s ruling on a claimed discovery violation under Crim.R. 16 for an abuse

of discretion. State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200,

¶ 27. “[A]buse of discretion connotes that the court’s attitude is unreasonable, arbitrary or

unconscionable.” (Internal quotations omitted.) State v. Weaver, ___Ohio St.3d___,

2022-Ohio-4371, ¶ 24, quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 60,

quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). “A decision is unreasonable if there

is no sound reasoning process that would support the decision.” (Internal quotations

omitted.) Fernando v. Fernando, 10th Dist. No. 16AP-788, 2017-Ohio-9323, ¶ 7, quoting

AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161 (1990). A decision is arbitrary if it is made “without consideration of or regard for

facts [or] circumstances.” (Internal quotations omitted.) State v. Hill, ___Ohio St.3d___,

2022-Ohio-4544, ¶ 9, quoting State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, ¶ 12,

quoting Black’s Law Dictionary 125 (10th Ed.2014). A decision may also be arbitrary if it

lacks any adequate determining principle and is not governed by any fixed rules or

standards. See Beasley at ¶ 12, citing Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d

356, 359 (1981), citing Black’s Law Dictionary 96 (5th Ed.1979). See also State v. Hackett,

164 Ohio St.3d 74, 2020-Ohio-6699, ¶ 19. A decision is unconscionable if it “affronts the

sense of justice, decency, or reasonableness.” Fernando at ¶ 7, citing Porter, Wright,

Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. No. 08AP-69, 2008-Ohio-3567,

¶ 11.

Nos. 21AP-678 & 22AP-124 23

{¶ 73} An abuse of discretion may also be found where a trial court “applies the

wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous

findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶ 15 (8th

Dist.). See also New Asian Super Mkt. v. Jiahe Weng, 10th Dist. No. 17AP-207, 2018-Ohio-

1248, ¶ 16.

2. Analysis

{¶ 74} On the first day of trial, Mr. Harris’s counsel informed the trial court that the

state failed to provide him with a copy of Nurse Wood’s curriculum vitae (“CV”) 21 days

prior to trial. (Nov. 1, 2021 Tr. Vol. I at 7.) Although Mr. Harris concedes on appeal that

the state timely provided defense counsel with Nurse Wood’s forensic report (Brief of

Cross-Appellant at 29), he nonetheless argues that, pursuant to Crim.R. 16(K)’s mandatory

language, the trial court was required to exclude Nurse Wood’s testimony at trial due to the

state’s failure to timely produce her CV.

{¶ 75} Crim.R. 16(K) provides:

An expert witness for either side shall prepare a written report

summarizing the expert witness’s testimony, findings,

analysis, conclusions, or opinion, and shall include a

summary of the expert’s qualifications. The written report

and summary of qualifications shall be subject to disclosure

under this rule no later than twenty-one days prior to trial,

which period may be modified by the court for good

cause shown, which does not prejudice any other

party. Failure to disclose the written report to

opposing counsel shall preclude the expert’s

testimony at trial.

(Emphasis added.)

{¶ 76} The purpose of Crim.R. 16(K) is to prevent “either party from avoiding

pretrial disclosure of the substance of expert witness’s testimony by not requesting a written

report from the expert, or not seeking introduction of a report.” Crim.R. 16(K), 2010 Staff

Notes. In promoting “more open discovery” in criminal cases, Crim.R. 16(K)’s aim is to

level the lopsided playing field by strengthening the defendant’s right to know the evidence

the state will present against him or her at trial. See State v. Boaston, 160 Ohio St.3d 46,

2020-Ohio-1061, ¶ 44.

Nos. 21AP-678 & 22AP-124 24

{¶ 77} After defense counsel raised this issue at trial, the state did not dispute that

it failed to provide defense counsel with Nurse Wood’s CV in accordance with Crim.R.

16(K). (See Tr. Vol. I at 10.) But, the trial prosecutor pointed out that Mr. Harris’s trial

counsel timely received Nurse Wood’s report and emphasized that, under the plain

language of the rule, exclusion of an expert witness’s testimony is only mandated when an

expert’s report—not CV—is not timely disclosed. (See Tr. Vol. I at 9-10.)

{¶ 78} To remedy the belated production of Nurse Wood’s CV, the trial court

suggested a 24-hour continuance. (Tr. Vol. I at 14.) But, in rejecting the trial court’s

proposal, Mr. Harris’s trial counsel stated as follows:

Your Honor, what I have in the report, and for the record, I do

have the report and it’s one that I would expect to be filled out

as part of a medical examination. What I don’t have is the

qualifications. And I think, Your Honor, that an extra 24-hour

period might allow me to review some of the qualifications

that this nurse may have, but, Your Honor, my understanding

that this is going to be a new sort of [forensic nursing]

program that will be forthcoming.

Your Honor, I don’t think looking at her CV is going to

drastically change my ability to counter anything

she would say by way of a witness who might give a

counterpoint, Your Honor, so no, I’m not asking for a delay

for the Court’s question. I don’t think 24 hours is sufficient to

help me.

***

Your Honor, to have an expert in the form of a nurse come in

and start discussing very medical concepts particularly

inasmuch as they pertained to strangulation, the

follow-up tests, to a severed artery, Your Honor, why someone

would do that and why would they follow up with tests, that I

can see, Your Honor, goes to the crux of my argument which

is I believe she’s looking at things that are specialized training

that I can’t begin to understand.

Your Honor, the fact that I don’t understand what a nurse says

on a normal day either, I don’t think precludes me from

having her CV so that I can see specifically the training. Your

Honor, my understanding is the state may even have in this

case done some extra training in preparation for kind of a

Nos. 21AP-678 & 22AP-124 25

different kind of testimony than we might have had in the

past.

So, Your Honor, no, to the extent that the courts use the least

restrictive remedy to a 16(K) violation, Your Honor, I don’t

believe a short delay with her CV would likely do that. I think

only looking at it in the context of what this might be in the

big picture and potentially having another witness that could

give some more or differing analysis is what we would be

looking for.

(Emphasis added.) (Tr. Vol. I at 14-17. See also Tr. Vol. II at 219; Tr. Vol. III at 429-30.)

{¶ 79} To address defense counsel’s concerns about the inadequacy of a 24-hour

trial continuance, the trial court postured that defense counsel could ask for a 22-day

continuance as a remedy for the state’s failure to timely produce Nurse Wood’s CV. (Tr.

Vol. I at 17.) But, Mr. Harris—who was incarcerated at the time of trial—told his trial

counsel he did not wish to continue the scheduled trial. (Tr. Vol. I at 17.) The trial court

deferred ruling on this issue at that time. (Tr. Vol. I at 18.)

{¶ 80} The state provided defense counsel with Nurse Wood’s CV after the first day

of trial ended and, we note, before any witnesses were called. (Tr. Vol. I at 215; Tr. Vol. III

at 403.) The state called Nurse Wood as a witness on the third day of trial. (See Tr. Vol. III

at 416.) Before she testified, however, defense counsel again argued that because the state

failed to timely produce Nurse Wood’s CV, Crim.R. 16(K) precluded her from testifying.

(See Tr. Vol. III at 402-08.) Specifically, defense counsel explained that he anticipated

Nurse Wood would “testify that she did a forensic examination that reveals specific things

with regard to strangulation,” and expressed concern about the state calling “a nurse who

has forensic training specific to looking for signs or symptoms of strangulation” when he

was not timely provided with her CV detailing her certification in this area. (See Tr. Vol. III

at 404-05.) Mr. Harris’s trial counsel emphasized his concern about the state “attempting

to use [Nurse Wood’s] testimony to make [the jury] look at this as potentially a life-

threatening situation,” which the defense pointed out was relevant to the “serious physical

harm” element of both the felonious assault and kidnapping charges. (See Tr. Vol. III at

407-08.)

{¶ 81} Finding the plain language of Crim.R. 16(K) did not “require the express and

particularized transmission of a [CV],” the trial court ultimately denied Mr. Harris’s motion

Nos. 21AP-678 & 22AP-124 26

to preclude Nurse Wood’s testimony at trial. (Nov. 2, 2021 Entry at 2. See also Tr. Vol. II

at 219; Tr. Vol. III at 410-11.) More precisely, the trial court issued an entry modifying the

disclosure period, pursuant to Crim.R. 16(K), and explaining its findings and reasoning in

support of that decision. (Nov. 2, 2021 Entry, citing State v. Seitz, 5th Dist. No. 14 CAA 10

00072, 2015-Ohio-3100.)

{¶ 82} We acknowledge the mandatory language of Crim.R. 16(K). However, we

need not reach the issue of whether a trial court’s discretion remains when a party fails to

“disclose” an expert’s “written report,” as contemplated by Crim.R. 16(K), because

there is no dispute in this case that the state timely disclosed Nurse Wood’s written report.

(Emphasis added.) Compare State v. Opp, 3d Dist. No. 13-13-33, 2014-Ohio-1138, ¶ 9-16,

quoting State v. Sage, 31 Ohio St.3d 173, 180 (1987) (summarizing decisions declining to

strictly apply the last sentence of Crim.R. 16(K), and expressing its intention to “continue

to apply the long-established precedent, which holds that questions regarding the

admission or exclusion of evidence are within the trial court’s discretion, * * * in connection

with violations of Crim.R. 16(K).”). See also State v. Allenbaugh, 11th Dist. No. 2019-A-

0017, 2020-Ohio-68, ¶ 33-34.

{¶ 83} We refuse to give the mandatory exclusion language of Crim.R. 16(K) the

broad reading Mr. Harris proposes, as such construction would run afoul of the plain and

unambiguous language of the rule. In fact, Mr. Harris’s contention that the trial court was

required to exclude Nurse Wood’s trial testimony is belied by the sentence which precedes

the language on which he relies. That sentence provides that an expert’s written report and

summary of qualifications “shall be subject to disclosure under this rule no later than

twenty-one days prior to trial, which period may be modified by the court for good

cause shown, which does not prejudice any other party.” (Emphasis added.)

Crim.R. 16(K). We read this sentence as expressly providing for a trial court’s discretion in

addressing a party’s failure to comply with the timing requirements of the rule.

{¶ 84} Thus, to prevail on his third assignment of error, Mr. Harris must show the

trial court abused its discretion in modifying the 21-day period applicable to the pre-trial

production of Nurse Wood’s CV. But, Mr. Harris does not contend on appeal that good

cause was not shown, that he was prejudiced in any meaningful way by the belated

disclosure of Nurse Wood’s CV, or that the exclusion of Nurse Wood’s testimony would

Nos. 21AP-678 & 22AP-124 27

have changed the result of his trial. And, on review of the record below, we do not find any

viable basis to make such contentions.

{¶ 85} The trial court found, on the facts of this case, good cause existed to modify

the disclosure deadline, and summarized those reasons. First, it noted defense counsel

knew, before trial, that Nurse Wood was a registered nurse. (Nov. 2, 2021 Entry at 1. See

Tr. Vol. III at 403.) The trial court also pointed out that Nurse Wood’s report was timely

produced and complied with Crim.R. 16(K)’s requirements. (See Nov. 2, 2021 Entry at 2.

See, e.g., Tr. Vol. III at 402-03.) And, the trial court emphasized that, despite knowing

Nurse Wood’s CV had not yet been produced, Mr. Harris’s trial counsel did not raise this

issue until the day of trial, albeit before the jury was impaneled (Nov. 2, 2021 Entry at 2.

See, e.g., Tr. Vol. I at 10; Tr. Vol. III at 406-07.) The trial court further found that the state’s

failure to timely produce Nurse Wood’s CV was not done in bad faith, but rather, borne out

of a “ministerial oversight.” (Nov. 2, 2021 Entry at 2.)

{¶ 86} The trial court also concluded that Mr. Harris would not suffer prejudice from

its decision to modify the state’s disclosure period. It noted that defense counsel received

Nurse Wood’s CV more than a day prior to her testimony, thus giving him adequate time to

incorporate any relevant details gleaned from the CV into his cross-examination

preparations. (See Nov. 2, 2021 Entry at 2-3.) And, the trial court pointed out that, if the

prejudice from the belated disclosure were so great, Mr. Harris likely would have availed

himself of the trial court’s proposed remedy of a 22-day continuance, which would

guarantee the state’s compliance with the rule. (See Nov. 2, 2021 Entry at 3.)

{¶ 87} On review, we find the trial court’s analysis is supported by the record. Thus,

we cannot say the trial court abused its discretion in enlarging the state’s expert disclosure

period, as provided for in Crim.R. 16(K) and denying Mr. Harris’s motion to exclude Nurse

Wood’s testimony at trial. It is undisputed that Mr. Harris’s trial counsel had Nurse Wood’s

expert report “months”—and, most certainly, more than 21 days—before trial. (See Tr. Vol.

I at 10. See also Tr. Vol. III at 402-03.) It is also undisputed that Mr. Harris’s trial counsel

did not notify the state about its failure to produce Nurse Wood’s CV until the morning of

trial. (See Tr. Vol. I at 10.) The trial court proposed a remedy—in the form of either a brief

(24 hours) or extended (22 days) continuance of trial—to address the state’s noncompliance

with Crim.R. 16(K). (Tr. Vol. I at 14-18.) But, Mr. Harris rejected both. (Tr. Vol. I at 14-

Nos. 21AP-678 & 22AP-124 28

18.) And, the state provided defense counsel with Nurse Wood’s CV over 24 hours before

she testified at trial. (See Tr. Vol. I at 215-16; Tr. Vol. III at 403.)

{¶ 88} Significantly, we note that defense counsel’s concerns about the state’s

untimely production of Nurse Wood’s CV were expressed in connection with Mr. Harris’s

felonious assault and kidnapping charges. (Tr. Vol. III at 404-08.) Defense counsel did not

contend, however, that the state’s untimely production of Nurse Wood’s CV impacted Mr.

Harris’s ability to present a defense as to the aggravated burglary offense. This point is

relevant to our analysis of whether Mr. Harris was prejudiced by the trial court’s

enlargement of the state’s disclosure period under Crim.R. 16(K), as the aggravated

burglary was the only offense for which Mr. Harris was convicted.

{¶ 89} Nurse Wood’s expert testimony and opinion about the cause or severity of

L.A.’s injuries had minimal relevance to the jury’s evaluation of whether the state’s evidence

proved, beyond a reasonable doubt, that Mr. Harris trespassed in D.D.’s house by force,

with the purpose to commit an assault offense, and inflicted, attempted to inflict, or

threatened to inflict physical harm on L.A. See R.C. 2911.11(A)(1). The evidentiary support

for the essential elements of that offense was borne out, in large part, by the testimony of

D.D. and L.A. about the events that took place on June 24, 2020. This means that, even

assuming Nurse Wood’s testimony should have been excluded from trial, the trial court’s

failure to do so still would not rise to the level of reversible error under the facts and

circumstances of this case. Mr. Harris does not argue on appeal, did not argue in the trial

court, and the record before us does not support a finding that, had Nurse Wood’s

testimony been excluded from trial, the jury would not have found Mr. Harris guilty of the

aggravated burglary offense.

{¶ 90} For the foregoing reasons, we overrule Mr. Harris’s third cross-assignment

of error.

D. Fourth Cross-Assignment of Error

{¶ 91} In his fourth cross-assignment of error, Mr. Harris argues he received

ineffective assistance of trial counsel. Those arguments are not well-taken.

Nos. 21AP-678 & 22AP-124 29

1. Controlling Law and Standard of Review

{¶ 92} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) counsel’s performance was deficient or objectively unreasonable, as

determined by “ ‘prevailing professional norms;’ ” and (2) that the deficient performance of

counsel prejudiced the defendant. State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126,

¶ 77, quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

{¶ 93} To show trial counsel’s performance was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show counsel’s actions were not trial strategies prompted by

reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong

presumption that all decisions fall within the wide range of reasonable professional

assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions,

even if unsuccessful, do not generally constitute ineffective assistance of counsel. State v.

Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a

substantial violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio

St.3d 136, 141-42 (1989).

{¶ 94} Prejudice results when “ ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”

Bradley at 142, quoting Strickland at 694. “ ‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” Id., quoting Strickland at 694.

{¶ 95} When analyzing an ineffective assistance of counsel claim, an appellate court

“need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland at

697. See also State v. Wade, 10th Dist. No. 20AP-456, 2021-Ohio-4090, ¶ 19. “If it is easier

to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that

course should be followed.” Strickland at 697.

2. Analysis

{¶ 96} Mr. Harris asserts his trial counsel was ineffective in two respects: (1) failing

to object to the introduction of prior bad acts testimony; and (2) deficiently cross-

examining several of the state’s witnesses. (Brief of Cross-Appellant at 34-40.)

Nos. 21AP-678 & 22AP-124 30

Additionally, Mr. Harris asserts the cumulative effect of these alleged errors rendered his

trial counsel ineffective.

{¶ 97} As to the merits of each ineffective assistance allegation, the state argues Mr.

Harris has failed to rebut the presumption that his trial counsel provided him with adequate

representation. The state also contends that Mr. Harris has failed to demonstrate how he

was prejudiced by any of the alleged errors individually or cumulatively.

a. Failure to object to testimony and evidence about prior bad acts.

{¶ 98} Mr. Harris first alleges his attorney was ineffective for failing to object to the

introduction of irrelevant and inadmissible prior bad acts evidence presented to the jury

through L.A.’s testimony. During L.A.’s direct examination, the trial prosecutor asked L.A.

why she did not feel as though she could leave her home while Mr. Harris was there. (Tr.

Vol. II at 257.) In response, L.A. stated: “Because previous times [Mr. Harris] said he was

going to kill me so I thought it was my time.” (Sic.) (Emphasis deleted.) (Brief of Cross-

Appellant at 34, citing Tr. Vol. II at 257.) It is this single piece of inferential evidence—that

is, the “previous times” reference which could be construed as suggesting Mr. Harris had

assaulted L.A. before—to which Mr. Harris contends his trial counsel should have objected.

{¶ 99} In his brief, Mr. Harris does not argue this evidence was not relevant under

Evid.R. 401. (See Brief of Cross-Appellant at 34-37.) In any event, we conclude that it was.

Relevant evidence is defined 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.” Evid.R. 401. “Evidence which is not relevant is not

admissible.” Evid.R. 402. From our review of the record, it is clear that part of the defense’s

trial strategy was to undermine the veracity of L.A.’s allegations by emphasizing her delay

in reporting the incident. (See, e.g., Tr. Vol. II at 309-11.) The testimony at issue was

therefore relevant to explaining such delay.

{¶ 100} Mr. Harris instead argues his trial counsel’s failure to object to this evidence

under Evid.R. 403 constituted deficient performance. Generally, he contends that this

brief, singular, and vague reference to “previous times” may have tainted the jury’s

perception of him and, somehow, bolstered L.A.’s allegations. (Brief of Cross-Appellant at

37.)

Nos. 21AP-678 & 22AP-124 31

{¶ 101} “Evidence of any other crime, wrong, or act is not admissible to prove a

person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Evid.R. 404(B)(1). However, such evidence may be

relevant for other purposes, including to prove “motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Id.; accord R.C.

2945.59. The list of permitted purposes in Evid.R. 404(B) is not exhaustive. State v.

Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 18. Rather, “evidence of other crimes,

wrongs or acts may be admissible for any purpose material to the issue of guilt or innocence,

as long as it is not being introduced for the purpose of showing the accused’s propensity to

commit bad acts.” State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 49 (2d Dist.).

But, even if evidence is relevant, it 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.” Evid.R. 403(A).

{¶ 102} Assuming arguendo that the challenged other-acts statement was

inadmissible, however, the “failure to object to error, alone, is not enough to sustain a claim

of ineffective assistance of counsel.” State v. Holloway, 38 Ohio St.3d 239, 244 (1988). See

also State v. Pawlak, 8th Dist. No. 99555, 2014-Ohio-2175, ¶ 81-83; State v. Taylor, 10th

Dist. No. 12AP-870, 2013-Ohio-3699, ¶ 33-35. As the Ohio Supreme Court has explained:

“[E]xperienced trial counsel learn that objections to each

potentially objectionable event could actually act to their

party’s detriment. * * * In light of this, any single failure to

object usually cannot be said to have been error unless the

evidence sought is so prejudicial * * * that failure to object

essentially defaults the case to the state. Otherwise, defense

counsel must so consistently fail to use objections, despite

numerous and clear reasons for doing so, that counsel’s

failure cannot reasonably have been said to have been part of

a trial strategy or tactical choice.”

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 140, quoting Lundgren v.

Mitchell, 440 F.3d 754, 774 (6th Cir.2006).

{¶ 103} In this case, defense counsel’s failure to object to the challenged testimony

can be reasonably viewed as trial strategy or tactical choice. There was only one vague

reference to “previous times” over the course of a three-day trial, which was not invited by

the prosecutor and did not amount to anything more than a brief and ambiguous mention

Nos. 21AP-678 & 22AP-124 32

of the prior history. The reference was not detailed and, once it was made by L.A., the

prosecutor did not pursue any additional inquiry about the topic. An objection to this

imprecise and fleeting comment could have brought a heightened awareness to any

suggestion that Mr. Harris had previously threatened, assaulted, or kidnapped L.A.—

something trial counsel might have intended to avoid. Accordingly, we find trial counsel’s

failure to object to L.A.’s reference to “previous times,” even if erroneous, may have been a

reasonable tactical choice. Thus, we conclude counsel’s failure to object to this other-acts

evidence did not constitute deficient performance.

{¶ 104} We further find that Mr. Harris has failed to demonstrate prejudice, or a

reasonable probability that, but for his trial counsel’s failure to object to this brief and non-

descriptive reference to previous encounters between Mr. Harris and L.A., the result of the

proceeding would have been different. Even assuming the jury heard and understood L.A.’s

mention of “previous times” as referring to prior crimes committed by Mr. Harris, the jury’s

verdict—which included acquittals on two counts, including the felonious assault offense—

belies his claim that the admission of this evidence generally tainted the jury’s view of him,

so as to satisfy Strickland’s prejudice prong. See, e.g., State v. Gardner, 2d Dist. No. 21357,

2010-Ohio-6479, ¶ 33. And, as already described above, the state produced ample evidence

supporting the aggravated burglary offense for which Mr. Harris was convicted. In light of

the overwhelming evidence of Mr. Harris’s guilt as to that offense, we do not believe trial

counsel’s failure to object to the other-acts evidence impacted the outcome of Mr. Harris’s

trial.

{¶ 105} Based on the foregoing, we find trial counsel’s failure to object to L.A.’s

reference to “previous times” as impermissible other-acts evidence did not constitute

ineffective assistance of counsel.3

3 Although he does not attribute error to trial counsel’s failure to request or the trial court’s failure to give a

limiting instruction concerning the other-acts evidence suggested by L.A.’s reference to “previous times,” he

nonetheless contends that the absence of such instruction “further prejudice[ed] [Mr.] Harris.” (Brief of Cross-

Appellant at 37.) We note, however, that the Ohio Supreme Court has expressly cautioned trial courts,

however, about giving such limiting instruction sua sponte any time other-acts evidence is presented at trial.

“Depending on the nature of the other-acts evidence and the context in which it is used, defense counsel may

as a matter of strategy wish to avoid highlighting the evidence for the jury.” State v. Hartman, 161 Ohio St.3d

214, 2020-Ohio-4440, ¶ 67, citing State v. Schaim, 65 Ohio St.3d 51, 61 (1992), fn. 9 (“the decision not to

request a limiting instruction is sometimes a tactical one, and we do not wish to impose a duty on the trial

courts to read this instruction when it is not requested”). Thus, Mr. Harris’s contention is not well-taken.

Nos. 21AP-678 & 22AP-124 33

b. Deficient performance during cross-examination of the state’s

witnesses.

{¶ 106} Mr. Harris also contends his trial counsel’s cross-examination of some

witnesses constituted ineffective assistance of counsel. Specifically, Mr. Harris complains

that his trial counsel’s line of questioning of D.D., Detective Wright, and Nurse Wood was

deficient because his attorney asked each of them “one question too many”—or, more

broadly, bad questions—which elicited responses unfavorable to Mr. Harris. (See Brief of

Cross-Appellant at 38-40.)

{¶ 107} Generally, “[t]he extent and scope of cross-examination clearly fall within the

ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance of

counsel.” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146. Moreover, “ ‘an

appellate court reviewing an ineffective assistance of counsel claim must not scrutinize trial

counsel’s strategic decision to engage, or not engage, in a particular line of questioning on

cross-examination.’ ” State v. Dorsey, 10th Dist. No. 04AP-737, 2005-Ohio-2334, ¶ 22,

quoting In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 40. See also State v.

Allah, 4th Dist. No. 14CA12, 2015-Ohio-5060, ¶ 23.

{¶ 108} After our review, we do not find the record before us supports the argument

that trial counsel’s cross-examination of these three witnesses constituted deficient

performance under Strickland. In Ohio, it is often difficult for attorneys in criminal trials

to anticipate how a witness called by the opposing party will respond to questions because,

unlike in civil cases, the Ohio Rules of Criminal Procedure do not provide for pre-trial

discovery depositions. The record demonstrates that defense counsel’s strategy at trial was

to suggest that either L.A. was not injured at all or that her injuries were not serious. And,

the questions Mr. Harris now takes issue with on appeal were on par with that strategy.

Although trial counsel’s questions did not result in the responses he hoped for and perhaps

could have been more craftily worded, we cannot say they fell outside the realm of

reasonable trial strategy.

{¶ 109} Moreover, Mr. Harris fails to demonstrate prejudice, or a reasonable

probability that, but for his trial counsel asking each of these three witnesses a single

question that elicited from each an answer that undermined Mr. Harris’s claim that L.A.’s

injuries were not serious, the result of the proceeding would have been different. The

felonious assault and kidnapping offenses Mr. Harris was charged with prohibit a person

Nos. 21AP-678 & 22AP-124 34

from causing serious physical harm to another in conjunction with the commission of

the offense. R.C. 2903.11(A)(1); R.C. 2905.01(A)(3). See R.C. 2901.01(A)(5) (defining

“serious physical harm to persons”). And, significantly, the jury acquitted Mr. Harris of

both the felonious assault and kidnapping counts. But, for Mr. Harris to be convicted of

the aggravated burglary offense of which the jury found him guilty, the state was only

required to show Mr. Harris inflicted, attempted, or threatened to inflict physical harm

on another during the course of trespassing in an occupied structure by force and with

purpose to commit a criminal offense while inside. R.C. 2911.11(A)(1). “Physical harm to

persons” is broadly defined by Ohio law to include “any injury, illness, or other

physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).

{¶ 110} To support the prejudice prong of Strickland, Mr. Harris contends his trial

counsel’s questioning of the state’s witnesses resulted in answers that undermined Mr.

Harris’s contention that L.A.’s injuries were either nonexistent or not serious. But the jury

was not required to find Mr. Harris caused serious physical harm—or, for that matter, any

physical harm—to L.A. in order to convict him of the aggravated burglary offense. As

described above, the state produced ample evidence suggesting Mr. Harris attempted to

cause, threatened to cause, and/or actually caused physical harm to L.A. on June 24, 2020.

Accordingly, we do not find his trial counsel’s cross-examination questioning of these three

witnesses impacted the outcome of trial.

{¶ 111} Based on the foregoing, we find Mr. Harris fails to demonstrate either the

deficient performance or prejudice Strickland requires to support this allegation of

ineffective assistance of counsel.

c. Cumulative Error.

{¶ 112} Finally, Mr. Harris argues his trial counsel was ineffective based on the

cumulative effect of his errors during the trial. “Under this doctrine, a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial

even though each of the numerous errors does not individually constitute cause for

reversal.” State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, ¶ 169. See also State v.

C.D.S., 10th Dist. No. 20AP-355, 2021-Ohio-4492, ¶ 112. As applied to a claim for

ineffective assistance of counsel, “[e]ach assertion of ineffective assistance of counsel going

to cumulative error depends on the merits of each individual claim; when none of the

Nos. 21AP-678 & 22AP-124 35

individual claims of ineffective assistance of counsel have merit, cumulative error cannot

be established simply by joining those meritless claims together.” Graham at ¶ 170.

{¶ 113} Because each of Mr. Harris’s individual claims of deficient performance is

without merit, we find that he has failed to show cumulative error sufficient to reverse his

convictions. We therefore find that Mr. Harris is unable to demonstrate ineffective

assistance of counsel.

{¶ 114} Based on the foregoing, Mr. Harris’s fourth cross-assignment of error is

overruled.

III. ANALYSIS OF THE STATE’S SOLE ASSIGNMENT OF ERROR

{¶ 115} The Reagan Tokes Law, effective March 22, 2019, amended 50 sections of the

Revised Code and adopted four new sections. R.C. 2901.011. In general, the law provides

that first-degree and second-degree felonies not already carrying a life sentence are subject

to an indefinite sentencing scheme. Specifically, it requires a sentencing court to impose a

stated minimum sentence as provided in R.C. 2929.14(A)(2)(a) and an accompanying

maximum term as provided in R.C. 2929.144 for non-life-sentence felony offenses of the

first or second degree committed on or after March 22, 2019. The aggravated burglary

offense for which Mr. Harris was convicted occurred in June 2020, is a first-degree felony,

and is not subject to the possibility of a life prison sentence.

{¶ 116} R.C. 2967.271 specifies how the minimum and maximum prison terms affect

the amount of time a defendant sentenced under the Reagan Tokes Law will be

incarcerated. Generally, there is a rebuttable presumption that a defendant will be released

from prison after serving the minimum term imposed by the sentencing court. See

R.C. 2967.271(B). But the Ohio Department of Rehabilitation and Correction (“ODRC”)

“may rebut [that] presumption” if it—being the ODRC—“determines, at a hearing” that one

of the conditions specified in R.C. 2967.271(C) apply. In that event, the ODRC “may

maintain the offender’s incarceration” up to the maximum prison term set by the

sentencing court. R.C. 2967.271(D)(1).

{¶ 117} Concerns about the constitutionality of the new law arose in Ohio’s common

pleas courts shortly after its enactment. See, e.g., State v. O’Neal, 1st Dist. No. C-190736,

2022-Ohio-3017 (reversing trial court’s decision refusing to impose indefinite sentence

based on its finding that the indefinite sentencing provisions of the Reagan Tokes Law

Nos. 21AP-678 & 22AP-124 36

violated the constitutional safeguards of procedural due process and separation of powers);

State v. Simmons, 8th Dist. No. 109476, 2021-Ohio-939 (the same). And, we note that, at

the time Mr. Harris was sentenced, neither this court nor the Supreme Court had ruled

upon the constitutionality of the new law.

{¶ 118} While this appeal was pending, however, the Supreme Court issued a decision

finding the Reagan Tokes Law to be facially constitutional. Hacker, 2023-Ohio-2535 at

¶ 41. Pursuant to that decision, we must conclude the definite sentence imposed by the trial

court for the aggravated burglary offense is contrary to law.

{¶ 119} Accordingly, the state’s sole assignment of error is sustained.

IV. CONCLUSION

{¶ 120} Having overruled each of Mr. Harris’s four cross-assignments of error and

sustained the state’s sole assignment of error, we vacate the nine-year prison sentence

imposed by the January 3, 2022 judgment of the Franklin County Court of Common Pleas

and remand this matter for a resentencing hearing on the aggravated burglary offense in

accordance with the Reagan Tokes Law.4

Sentence vacated; cause remanded.

MENTEL and BOGGS, JJ., concur.

4 At the December 3, 2021 sentencing, the trial court credited Mr. Harris with 487 days of pre-sentencing jail-

time credit. On remand, the trial court should, after imposing an indefinite sentence in accordance with this

decision and Ohio’s sentencing laws, calculate how many post-sentencing days Mr. Harris has been

incarcerated in connection with this case and credit those days—along with the 487 days of pre-sentencing

jail-time credit—as time-served towards the new prison sentence it imposes.