         [Cite as State v. Bell, 2017-Ohio-8959.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-160608
                                                        TRIAL NO. B-1401726
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

JAMES BELL,                                         :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 13, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Soumyajit Dutta, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

          {¶1}   Following a jury trial, James Bell was convicted of aggravated

burglary, aggravated robbery, two counts of felonious assault, and kidnapping—each

with an accompanying firearm specification—and having a weapon while under a

disability. The trial court imposed an aggregate term of 52 years of incarceration.

We affirm.

                       A Home Invasion and a Kidnapping

          {¶2}   Returning home one evening, Cortaize Parker and Aunise Brown,

along with their two children, parked near the backdoor of the family’s townhouse.

Parker went inside, while Brown started to get the children out of their car seats.

Parker heard screams, opened the backdoor, and saw an unidentified man holding

Brown and the children at gunpoint. A second unidentified man entered Parker’s

house, shot Parker in the leg, and let a third man in through the front door. Parker

identified Bell as the third man. Parker suffered multiple gunshot wounds from Bell

and the unknown assailant. While Parker lay bleeding, the two men ransacked

Parker and Brown’s home, stole money, and left.

          {¶3}   Parker called 9-1-1. He did not identify Bell by name during the call.

Parker was transported to the hospital and, almost immediately upon his arrival, was

questioned by police officer Adam Wood. Parker told Officer Wood that one of the

men involved was “James,” who Parker knew as the brother of Brown’s best friend,

Melanzie Williams.       At the hospital, Parker also separately identified Bell to

Detective Dustin Weekly. Parker did not speak with Brown before identifying Bell to

police.

          {¶4}   Meantime, the three perpetrators forced Brown to leave her children in

the townhouse’s parking lot and abducted her. They drove her to the apartment of



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Brown’s cousin, Sharon Brown. The men force Brown to lie on a bed while they

rummaged through a back room.

       {¶5}      Once the men left, Brown immediately called her mother, Anita

Brown, and asked Anita to get Brown’s children. Brown next called 9-1-1. She told

the 9-1-1 operator that she could not identify any of the men involved.          Police

responded to Sharon’s apartment and immediately questioned Brown. She did not

identify Bell.

       {¶6}      At trial, Brown, who knew Bell, stated that Bell had a very distinctive

voice, and that she recognized his voice during the car ride from her home to

Sharon’s. Brown also testified that, as soon as the men had left Sharon’s apartment,

she opened the front door of the apartment and saw Bell in the hallway.

       {¶7}      The defense questioned Brown about her failure to name Bell at the

scene or on the 9-1-1 call. Brown explained that she was too preoccupied with her

children’s safety to initially identify Bell. However, she thought she had told police

later on that night that one of the perpetrators was “James Williams,” Melanzie

Williams’s brother. At the time, Brown didn’t know that James and Melanzie had

different last names.      The defense also cross-examined Brown concerning her

connection to other possible suspects, including a man named Damon Kirkenhall

whose fingerprints were found at the scene. She denied knowing Kirkenhall.

       {¶8}      Two days after the home invasion, Parker picked Bell out of a

photographic lineup.       Within a month, Anita Brown received a handwritten,

unsigned letter that included details referencing the home invasion and kidnapping.

Anita Brown put the letter into a plastic bag, and 14 months later turned the letter

over to police. Police tested the letter. Bell’s fingerprints were on it.




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       {¶9}    Bell testified in his own defense. He admitted that he wrote the letter

but denied involvement in the home invasion and kidnapping. He testified that he

had been at Sharon’s apartment complex selling drugs all day, and that he had seen

Brown being dragged from a car and forced to go to an apartment. Bell claimed that

he grabbed an AK-47, and went to Sharon Brown’s apartment to investigate and

help. According to Bell, it was at this point that Brown saw him.

       {¶10} The court limited Bell in his cross-examination of Parker, Brown and

Detective Weekly. According to a proffer Bell made to the court, Bell wanted to

cross-examine these witnesses to present evidence that Brown and Parker had had a

troubled relationship, including a specific incident where Brown had stabbed Parker,

just two weeks prior to the home invasion, and to propose that Brown had

orchestrated the home invasion and shooting as a way to “get back” at Parker. The

defense wanted to suggest that it was Brown’s brother, Antonio Brown, along with

Kirkenhall, who had shot Parker, and that Brown wanted to set up Bell to protect

herself and the real assailants.

                             Argument and Analysis

       {¶11} Bell was denied his right to cross-examination, but the

error was harmless beyond a reasonable doubt. In his first assignment

of error, Bell contends that the trial court violated his right to due process of law and

his right to confront the witnesses against him when it refused to let him present his

defense. More specifically, Bell challenges the trial court’s rulings precluding him

from cross-examining Parker about Brown allegedly stabbing him; cross-examining

Brown about familial connections between herself and Kirkenhall that would tend to

show that Brown knew Kirkenhall well; and cross-examining Detective Weekly, who

had interviewed Parker at the hospital, about whether he thought that Parker was



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dishonest. Bell also contends that the trial court erred by refusing to allow him to

question one of his own witnesses, investigating officer Justin Hussell, concerning

text messages found on Brown’s cell phone.

       {¶12} The Confrontation Clause of the Sixth Amendment to the United

States Constitution gives the accused the right to confront the witnesses against him;

however, it “guarantees only ‘an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954

N.E.2d 596, ¶ 83, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88

L.Ed.2d 15 (1985). Accordingly, the court has “ ‘wide latitude * * * to impose

reasonable limits on such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.’ ” (Emphasis deleted.)

State v. Warmus, 197 Ohio App.3d 383, 2011-Ohio-5827, 967 N.E.2d 1223, ¶ 64 (8th

Dist.), quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89

L.Ed.2d 674 (1986). “To establish a Confrontation Clause violation, the defendant

must show that he was ‘prohibited from engaging in otherwise appropriate cross-

examination’ and ‘[a] reasonable jury might have received a significantly different

impression of [the witness’s] credibility had [the defendant’s] counsel been

permitted to pursue his proposed line of cross-examination.’ ” Id., quoting Van

Arsdall at 680.

       {¶13} Bell was permitted to draw some inferences regarding Brown’s alleged

set-up of him. Specifically, the defense asked Brown about her failure to initially

identify Bell to investigating officers or in the 9-1-1 call, and about her alleged

connection to Kirkenhall, whose fingerprints were found at the scene. However, the



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trial court should have permitted Bell to continue with this line of questioning when

cross-examining Brown, and should also have allowed Bell to ask Parker and Brown

about their allegedly acrimonious relationship. According to Bell’s proffer, Brown

knew Kirkenhall through family connections, and would have tried to protect him.

Further, Brown allegedly had a motive to hurt Parker—namely, her troubled

relationship with him that had supposedly lead to Brown stabbing Parker just two

weeks before the home invasion. Allowing Bell to question Brown and Parker about

these matters raise none of the concerns cited in Van Arsdall.           This line of

questioning was key to Bell’s defense.

       {¶14} While we find that the trial court erred in limiting Bell’s cross-

examination of Brown and Parker, we hold that the error was harmless beyond a

reasonable doubt. In Van Arsdall, the United States Supreme Court held that a

Confrontation Clause error is subject to a harmless-constitutional-error analysis. The

correct inquiry, is “assuming that the damaging potential of the cross-examination

were fully realized, a reviewing court might nonetheless say that the error was

harmless beyond a reasonable doubt.” Van Arsdall at 684. Whether the error is

harmless depends on a number of factors, including: the importance of the witness’s

testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points, the extent of cross-examination otherwise permitted, and

the overall strength of the prosecution’s case. Id.

       {¶15} Here, there is no doubt that Brown’s testimony was important. Only

she and Parker identified Bell. But Parker identified Bell, who he knew through

Melanzie Williams, to two officers shortly following the shooting. And Parker

testified that he had not spoken to Brown before being questioned by police. This



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evidence strongly discredits the defense’s proposed theory. Even if the defense had

been allowed to argue that Brown had set up Bell, Bell would be hard-pressed to

establish that Brown was able to convince Parker during his ambulance ride to the

hospital to frame Bell. Further, Bell sent a handwritten letter to Brown’s mother that

referenced the crimes at issue. Given Parker’s eyewitness identification and the

letter, combined with the overall strength of the state’s case and the cross-

examination that the court did permit, we hold that the damaging potential of Bell’s

proffer was negligible, at best. Accordingly, the error by the trial court was harmless

beyond a reasonable doubt.

       {¶16} In regard to Detective Weekly’s testimony, we hold that the trial court

properly excluded the detective’s testimony concerning Parker’s truthfulness. See

State v. Boston, 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989), overruled in part

on other grounds, State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d

944 (holding that it is error to allow a witness to comment on the credibility of

another witness).

       {¶17} Finally, Bell takes issue with what he characterizes as the trial court’s

ruling that precluded him, on direct examination, from asking one of the

investigating officers about text messages found on Brown’s phone that allegedly

referenced a “JB”—James Bell.      However, the trial court did not deny Bell the

opportunity to ask this.     Instead, the court sustained a proper objection that

counsel’s question was leading.      Upon rephrasing the question, the detective

responded that he did not have anything written in his notes or recall anything about

the text messages.

       {¶18} Bell’s first assignment of error is overruled.




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       {¶19} The letter was properly authenticated. In his second

assignment of error, Bell argues that the letter he wrote should not have been

admitted into evidence because the state failed to establish a chain of custody and

also failed to adequately link Bell to the letter.

       {¶20} “The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” Evid.R. 901(A); Great Seneca

Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 9 (1st Dist.).

We review the trial court’s judgment for an abuse of discretion. State v. Sage, 31

Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.

       {¶21} Establishing a chain of custody is part of Evid.R. 901(A)’s

authentication requirement. It is well-established that the state is not required to

prove a perfect chain of custody. State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-

5524, 776 N.E.2d 1061, ¶ 57, quoting State v. Keene, 81 Ohio St.3d 646, 662, 693

N.E.2d 246 (1993). Here, Anita Brown testified that she received the letter within a

month of the crimes at issue. She put the letter in a plastic bag and gave it to police

approximately 14 months later. This established the chain of custody. Bell contends

that the state was required to prove who had access to the letter before and after

Anita Brown received it. It did not. Bell’s argument goes to the weight of the

evidence, instead.

       {¶22} Next Bell argues that the state didn’t establish that Bell had written the

letter. Evid.R. 901(B) provides examples of authentication or identification

conforming with the requirements of Evid.R. 901(A).              Evid.R. 901(B)(4) is

instructive.   That subsection, entitled “Distinctive Characteristics and the Like,”

provides that “[a]ppearance, contents, substance, internal patterns, or other



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distinctive characteristics, taken in conjunction with circumstances” can be used to

authenticate evidence. In this case, Anita Brown testified that she received the letter

within a few weeks after the events in question. Detective Weekly testified that the

letter appeared to reference events relating to the case. Detective Weekly ran the

letter for fingerprints and discovered one of Bell’s on the letter. Based on the timing

of the letter, the references in it relating to the case, and the presence of Bell’s

fingerprint, we hold that the trial court did not abuse its discretion in finding that the

state had laid a proper foundation for the admission of the letter.

       {¶23} Bell’s second assignment of error is overruled.

       {¶24} Matters outside the record will not be reviewed on direct

appeal. In his third assignment of error, Bell argues that he was denied the

effective assistance of trial counsel. Bell claims that counsel was ineffective for (1)

failing to offer into evidence the notes of one of the investigating officers; (2) failing

to offer into evidence an audio recording of the interview between Parker and

Detective Weekley at the hospital; (3) misplacing notes from an investigating officer,

Detective Meyer, that may have included exculpatory statements from Brown; and

(4) failing to subpoena Detective Meyer to testify.

       {¶25} The state is correct that all of these assertions reference matters

outside of the record, and therefore that this argument is not proper on direct appeal.

See Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13;

State v. Wyche, 1st Dist. Hamilton No. C-160678, 2017-Ohio-7041, ¶ 4. Bell’s third

assignment of error is overruled.

       {¶26} No evidence of judicial bias. In his fourth assignment of error,

Bell contends that his due-process rights were violated because the court exhibited

judicial bias.



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       {¶27} Judicial bias is demonstrated by “a hostile feeling or spirit of ill will or

undue friendship or favoritism toward one of the litigants or his attorney, with the

formation of a fixed anticipatory judgment on the part of the judge, as

contradistinguished from an open state of mind which will be governed by the law

and the facts.” State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191

(1956), paragraph four of the syllabus; see State v. Loudermilk, 1st Dist. Hamilton

No. C-160487, 2017-Ohio-7378 (applying Weygandt).

       {¶28} The trial judge here was short with defense counsel at times, especially

during counsel’s proffer of Bell’s proposed defense. However, the record contains no

evidence that the trial judge reached any decision based on bias against Bell. Bell

points to his severe sentence as evidence of bias. However, given the nature of these

crimes—a home invasion and shooting, a kidnapping, and the ransacking of two

homes—the sentence was justified. Further, Bell does not contest his sentence on

appeal. Bell’s fourth assignment of error is overruled.

       {¶29} Bell’s convictions are not against the weight of the

evidence. In his fifth and final assignment of error, Bell contends that his

convictions were against the manifest weight of the evidence. They were not. While

Bell presented a version of events that, if believed, would have exonerated him, there

is no indication that in weighing the evidence presented the jury “so lost its way” as

to create a manifest miscarriage of justice warranting a new trial. See State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The fifth assignment of

error is overruled.




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                                         Conclusion

       {¶30} Bell’s convictions for aggravated burglary, aggravated robbery, two

counts of felonious assault, kidnapping, and having a weapon while under a

disability, and the accompanying firearm specifications, are affirmed.

                                                                     Judgment affirmed.
Z AYAS , P.J., and D ETERS , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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