[Cite as State v. Pennington, 2018-Ohio-3640.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :   APPEAL NOS. C-170199
                                                                 C-170200
     Plaintiff-Appellee,                         :   TRIAL NOS. B-1501989
                                                                B-1502543
  vs.                                            :

BRANDON PENNINGTON,                              :      O P I N I O N.

     Defendant-Appellant.                        :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in C-170200; Appeal Dismissed in
                             C-170199

Date of Judgment Entry on Appeal: September 12, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

        {¶1}   Brandon Pennington appeals his convictions for murder and having

weapons while under a disability. However, he has failed to raise any assignment of

error challenging his conviction for having weapons while under a disability, so we

dismiss the appeal in the case numbered C-170199. See App.R. 16(A); see also State

v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 42-43 (1st Dist.). Finding no merit in

his assignments of error relating to the murder conviction, we affirm.

                        Events Preceding the Shooting of Ashley Herald


        {¶2}   On the night of April 12, 2017, Ashley Herald invited her friend Donny

McKee to Pennington’s home in the Price Hill area of Cincinnati, where she had been

staying for several days. McKee, a tattoo artist, inked tattoos on both Herald and

Pennington that night and then left in the early hours of the 13th. Unbeknownst to

Pennington, McKee had taken a ring and some video games from Pennington’s

home.

        {¶3}   By about 2:30 a.m. on the 13th, Herald and Pennington figured out

that the ring was gone. In text messages to McKee, Herald accused him of stealing

the ring and demanded it back, stating that Pennington was “flipping out” and “sad

and Beyond mad about his little [girl’s] ring!”

        {¶4}   At trial, McKee testified that Herald had given him the ring as

collateral because she owed him $20 for the tattoo work. He said that he took the

ring to his girlfriend, who pawned it for him the next day.

        {¶5}   McKee believed that Pennington was reading the text messages on

Herald’s phone. So in his reply text message to Herald, he denied taking the ring and

instead accused her of stealing it.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



          {¶6}   At 4:00 a.m., Herald texted her mother for advice because “a tattoo

guy” whom she believed to be a friend had just stolen Pennington’s ring. According

to Herald’s text, Pennington was “so mad and kind of cold acting towards me.”

          {¶7}   At 10:30 a.m., Pennington texted McKee to tell him that he did not

blame him for the missing ring, and that he just wanted to find it. McKee told

Pennington that Herald must have stolen the ring and hidden it in the house.

Pennington replied, “Rte now she don’t even own the clothes on her back this bitch

life mine til she has my shit back.”        In relation to the missing video games,

Pennington texted McKee, “She says wat games but I’ll get it out of her just keep me

posted if u find them.” When McKee complained that Herald was withholding his

payment for the tattooing, Pennington replied, “I feel you she fucked a lot shit up.”

          {¶8}   By then, Herald discovered that McKee was lying to Pennington about

the ring. She texted McKee, “Why are you trying to make him think this was me you

fucking piece of shit.”

          {¶9}   Meanwhile, Herald texted a girlfriend, “I had a tattoo guy come do

some work on me and Brandon last night and [he] stole some expensive shit from

him and dude is trying to convince Brandon that I did it!! Wtf..this is real fucked

up.”

          {¶10} At about 3:00 p.m., Herald texted McKee, “I’m gonna get the shit beat
out of me for this ..real talk.. I’m not even supposed to be texting u right now.” Police

discovered this text on McKee’s phone. The same text, however, had been deleted

from Herald’s phone, which was recovered by police the night of the shooting.

          {¶11} Around 5:00 p.m., Herald texted her friend Thomas Burles to tell him
to meet her in Price Hill after he got off of work that night.

          {¶12} At 10:00 p.m., Herald texted Burles, “Just call me when ever u get off
babe..”




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                  OHIO FIRST DISTRICT COURT OF APPEALS


                                 The Minutes Before Herald Was Shot


       {¶13}    At 10:37 p.m., Burles texted Herald, “I’m off now, you on.

Rosemont?”

       {¶14} At 10:42 p.m., Herald texted Burles, “Yes on Rosemont.”

       {¶15} At 10:43 p.m., Herald texted, “When are you coming?!”

       {¶16} At 10:44 p.m., Burles replied, “On my way now baby.” And Herald
replied, “Ok.” That was the last time that Burles heard from Herald.

                                         After the Shooting


       {¶17} At 10:51 p.m., seven minutes after Herald’s last text message,
Pennington called 911 to report that a female friend had shot herself in the face.

Before he mentioned her terrible injury, however, he explained to the dispatcher that

the two of them had been “chillin’ and whatnot—I guess she was going through stuff

that my friend left in the closet, and then I hear a pop, and she shot herself.”

       {¶18} The dispatcher gave Pennington first-aid instructions and asked some
questions. Pennington stated that he had been on the first floor when he heard the

gunshot. He found his friend in his second-floor bedroom, and he moved the gun

that his friend used to shoot herself to a side table. He said he had no idea that there

was a gun in the home.

       {¶19} Police arrived at the home minutes later and found Herald in
Pennington’s bedroom, unconscious, with an obvious gunshot wound to her left

cheek. Pennington pointed out where he had placed the gun. An officer testified

Pennington’s calm and reserved demeanor was remarkable, given that his friend had

just shot herself in his home.

       {¶20} Shortly after Herald was transported to the hospital, several
investigators arrived. Upon entering Pennington’s bedroom, they quickly began to

doubt Pennington’s claim that Herald had shot herself. The gun, a Taurus 9 mm



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handgun, was recovered from a shelf near the bed. Two bottles of cleaning products

were lying on the floor in front of the shelf.

       {¶21} Criminalist Patrick Moran testified that, in his 16 years with the police
homicide unit, he investigated 60 to 70 suicides and 60 to 70 homicides per year. He

said that if the Herald shooting was a suicide as Pennington claimed, then the

handgun was “the cleanest gun I’ve ever seen in a suicide.” He explained that in

suicide cases:

                 A great many times[,] the gun is covered in blood. If it’s a

       close-contact wound, it’s my experience that the gun and the barrel are

       very, very entrusted [sic] with blood and human fluids.

                 If this gun is dropped by a person that shoots it, it’s probably

       gonna land in their blood. This weapon’s very clean.

       {¶22} Detective Greg Gehring, who had investigated hundreds of homicides
and suicides in the past 15 years, testified that although there was blood and brain

matter on Pennington’s bed, he immediately noticed how clean the handgun was, for

having reportedly been used in a close shooting.

       {¶23} Later on, when Gehring went to the hospital to see the still-
unconscious Herald, he noted that the gunshot wound to her left cheek was not, in

his experience, consistent with a suicide. According to Gehring, gunshot wounds in a

suicide are “either usually inner ear, or they’re close contact or contact,” but Herald’s

wound was none of those.

       {¶24} Meanwhile, at Pennington’s home, police found an operable shotgun, a
bandolier with shotgun shells, and assorted ammunition for different firearms,

including .22-caliber cartridges, 9 mm cartridges, .380-caliber cartridges, and 12-

gauge shotgun shells. Pennington was arrested for having weapons while under a

disability.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} During an interview with police, Pennington claimed that he had never
seen the handgun used in the shooting, and suggested that a “tattoo guy” may have

brought it to his house the night before. He said that after hearing the gunshot, he

ran upstairs, grabbed the gun “instantly” and “threw it up there” on the shelf.

       {¶26} After Herald’s death eight days later, deputy coroner Mona Gretel Case
Harlan Stephens, M.D., a forensic pathologist who has conducted more than 5,000

autopsies, conducted an autopsy on Herald’s body. Dr. Stephens concluded that,

based upon the sparse stippling about three inches from and around the gunshot

wound, it was not a contact wound, meaning that the muzzle of the gun was not

against Herald’s cheek when it fired. She testified that at the time of the injury, the

end of the gun barrel was between six inches and two feet away from Herald’s face,

“too far away for this to be a usual suicide.”

       {¶27} Dr. Stephens determined that the manner of Herald’s death was
homicide. She ruled out the possibility of a suicide based upon the appearance of the

wound, the appearance of the stippling, and the location of the wound on the cheek,

slightly below and to the side of the left eye. She testified that “the location of the

wound and the angle would be a very very unusual way for anyone, much less a

female, to shoot herself.” She testified on cross-examination that she could not,

however, completely rule out the possibility of suicide.

       {¶28} Police traced the handgun used in Herald’s shooting to a purchase
made ten years earlier by Alisha Calhoun, Pennington’s former girlfriend. According

to Calhoun, Pennington had her buy both the handgun and the shotgun for him in

2007. After Calhoun cleared the background check, Pennington gave her the money

to buy the guns, and then he kept both of the guns in his Price Hill home.

       {¶29} Examination and testing of the handgun revealed that at the time
Herald was shot, the shell casing had not ejected properly upon firing, but the gun

had fired without malfunction. No usable fingerprints were recovered from the gun.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



Swabbing of the gun revealed the presence of a mixture of DNA from at least two

individuals, but the profile contained insufficient data to be compared with either

Herald or Pennington.

        {¶30} Pennington was indicted for murder, felony-murder, and having
weapons while under a disability. Following a bench trial, the trial court found

Pennington guilty on all counts. After merger of the offenses, he was convicted of

murder with an accompanying firearm specification and the weapons-under-

disability count. He was sentenced to 15 years to life for the murder count, three

years for the specification, and 36 months in prison for the weapons-under-disability

count. The court ordered that all be served consecutively, for a total of 21 years to

life.

                         I.     Ineffective Assistance of Counsel


        {¶31} In his first assignment of error, Pennington argues that he was denied
the effective assistance of counsel. To prevail on an ineffective-assistance claim, an

appellant must demonstrate that: (1) counsel’s performance was deficient, and (2)

counsel’s deficient performance prejudiced the defense. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 141-142, 538 N.E.2d 373 (1989).

        {¶32} In reviewing defense counsel’s performance, we must remain highly
deferential.   Strickland at 689.    We must “recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Id. at 690.

        {¶33} An appellant’s demonstration that counsel’s performance was deficient
does not warrant the reversal of a conviction if counsel’s error had no effect on the

judgment. Id. at 691; Bradley at 142. The appellant must affirmatively demonstrate

that there is a reasonable probability that, but for counsel’s deficient performance,



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                  OHIO FIRST DISTRICT COURT OF APPEALS



the result of the trial would have been different. Strickland at 693-694; Bradley at

143.

       {¶34} A. Failure to hire a forensic pathology expert. Pennington first
asserts that defense counsel’s performance was deficient because counsel failed to

request funds for or hire a forensic pathology expert to contradict the opinion of the

state’s forensic pathology expert, Dr. Stephens.

       {¶35} Generally, the decision whether to call any witness “falls within the
rubric of trial strategy and will not be second-guessed by a reviewing court.” State v.

Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001). A decision by defense

counsel not to call an expert witness and instead rely on cross-examination of the

state’s expert is generally a matter of trial strategy and does not constitute ineffective

assistance of counsel. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶ 66; State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d

828, ¶ 118; State v. McHenry, 1st Dist. Hamilton No. C-170671, 2018-Ohio-3383, ¶

25.

       {¶36} Here, trial counsel conducted a thorough and rigorous cross-
examination of the state’s expert, attacking her opinion that the manner of death was

homicide, and leading her to concede that there was a chance, albeit slim, that the

victim had shot herself. We conclude that defense counsel’s decision not to hire or

call a forensic pathology expert fell “within the wide range of reasonable professional

assistance.” See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d

1096, ¶ 244, quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶37} Pennington directs us to Hinton v. Alabama, 571 U.S. 263, 274-275,
134 S.Ct. 1081, 188 L.Ed.2d 1 (2014), where the United States Supreme Court held

that trial counsel had rendered deficient performance by employing an expert he

knew to be inadequate because he failed to understand the resources that state law

made available to him.      However, Hinton involved a postconviction proceeding


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                  OHIO FIRST DISTRICT COURT OF APPEALS



where the defendant produced evidence outside the trial record, including the

affidavits of three experts who had reached different conclusions than the state’s

experts. See id. at 270.

       {¶38} In this case, on the other hand, Pennington cannot establish prejudice
based on the record before us. Resolving this issue in Pennington’s favor would be

purely speculative. See State v. Madrigal, 87 Ohio St.3d 378, 390, 721 N.E.2d 52

(2000).   Nothing in the record indicates that testimony from another forensic

pathologist would have been favorable to Pennington and would have altered the

outcome of the trial. See id. at 390-391; Mundt at ¶ 118; State v. Jeffries, 1st Dist.

Hamilton No. C-170182, 2018-Ohio-2160, ¶ 78-79. “Establishing that would require

proof outside the record, such as affidavits demonstrating the probable testimony.

Such a claim is not appropriately considered on a direct appeal.” Madrigal at 391.

Therefore, even assuming that counsel’s failure to obtain a forensic pathology expert

was deficient, Pennington has failed to demonstrate any resulting prejudice.

       {¶39} B. Failure to discover that the handgun model was defective.
Pennington also argues that counsel should have discovered that the model of

handgun that caused Herald’s injuries, a Taurus PT111 Millennium, was defective

and had been the subject of a Florida class-action lawsuit that alleged defects with

the handgun’s firing. He asserts that information regarding the defects in the Taurus

handguns was “widely publicized,” citing a court order that approved a class-action

settlement in the Florida case. See Carter v. Forjas Taurus S.A., S.D.Fla. No. 1:13-

CV-24583-PAS, 2016 WL 3982489 (July 22, 2016). He acknowledges, however, that

the court order in the Florida case was not made part of the record in this case. As

we have stated, we are unable to determine on appeal whether ineffective assistance

of counsel occurred where the allegations of ineffectiveness are based on facts not

appearing in the record. See State v. Cooperrider, 4 Ohio St.3d 226, 228, 448




                                          9
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N.E.2d 452 (1983); State v. Giuggio, 1st Dist. Hamilton No. C-170133, 2018-Ohio-

2376, ¶ 10.

       {¶40} C. Failure to subpoena the victim’s mother. Pennington contends
that defense counsel should have subpoenaed Herald’s mother to testify at trial

because she had made statements that caused the police to investigate the possibility

that Herald had previously attempted suicide.

       {¶41} We will not second-guess counsel’s decision not to call any witness
because that is a matter squarely within the ambit of trial strategy. See Treesh, 90

Ohio St.3d at 490, 739 N.E.2d 749. It is possible that defense counsel interviewed

Herald’s mother and decided that her testimony would not be favorable to

Pennington.    Moreover, although Pennington claims that testimony by Herald’s

mother may have been favorable to his defense, there is nothing in the record to

support that assertion. Therefore, we cannot say that Pennington was prejudiced by

counsel’s decision not to call Herald’s mother as a witness. And we note that defense

counsel was able to get into evidence the officer’s testimony about a possible prior

suicide attempt.

       {¶42} D. Failure to advise a pretrial guilty plea to the weapons-under-
disability count.    Finally, Pennington contends that trial counsel should have

advised him to enter a guilty plea to the weapons charge prior to trial to prevent the

state from introducing into evidence the shotgun, shotgun shells, and certain

ammunition that was not compatible with the shotgun or with the handgun that

caused Herald’s injuries.    He claims that the evidence was relevant only to the

weapons charge and would not have been admissible at trial if he had entered the

plea beforehand.

       {¶43} Pennington has not demonstrated that counsel’s performance was
deficient, or that but for counsel’s deficient performance, the result of the bench trial

would have been different.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶44} E. Pennington’s ineffective-assistance claims fail.          Finding no

merit to Pennington’s claims that he was denied the effective assistance of counsel,

we overrule the first assignment of error.

                               II.    Admission of Evidence


       {¶45} In his second assignment of error, Pennington argues that the trial
court abused its discretion by allowing into evidence certain physical items and

testimony. We review a trial court’s decision to admit evidence under an abuse-of-

discretion standard. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d

596, ¶ 86. We will not disturb on appeal a trial court’s ruling on evidentiary issues

absent an abuse of discretion and proof of material prejudice. State v. Buck, 2017-

Ohio-8242, 100 N.E.3d 118, ¶ 109 (1st Dist.).

       {¶46} Because this was a bench trial, we presume that the trial court did not
consider improper evidence in reaching its verdict. See State v. Arnold, 147 Ohio

St.3d 138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 39. Instead, we presume that the court

considered only “relevant, material, and competent evidence” unless the record

affirmatively discloses otherwise. State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d

754 (1987); State v. Shears, 1st Dist. Hamilton No. C-120212, 2013-Ohio-1196, ¶ 25.

       {¶47} A. Evidence related to guns and ammunition. Pennington argues
that the trial court erred by admitting into evidence the shotgun, shotgun shells, and

different types of ammunition, and by allowing a detective to testify that Pennington

had a tattoo of a bullet on his hand and displayed pictures of shell casings in his

home. He contends that the evidence was irrelevant to the murder charges and

amounted to improper evidence under Evid.R. 404(B) that was used to portray him

as a person with bad character.

       {¶48} Pennington failed to object to the evidence and testimony at trial, so he
has waived all but plain error. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-



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6266, 900 N.E.2d 565, ¶ 70. “Notice of plain error * * * is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. To prevail on a claim that the trial court committed

plain error, an appellant must demonstrate that an error constitutes an obvious

defect in the trial proceedings and demonstrate that the error affected the outcome of

the trial. State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 23.

       {¶49} Evid.R. 404(B) precludes admission of evidence of “other crimes,
wrongs or acts” to prove a person’s character trait to demonstrate conduct in

conformity with that trait. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695,

983 N.E.2d 1278, ¶ 16. But the rule allows trial courts broad discretion to admit

evidence of a defendant’s other acts “for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” See Evid.R. 404(B); Williams at ¶ 17.

       {¶50} We question whether the evidence at issue was, in fact, evidence of
“other crimes, wrongs, or acts.” Nevertheless, we do not find that the trial court

plainly erred by admitting it.

       {¶51} The shotgun, shotgun shells, and ammunition were relevant to the
question of whether Pennington knowingly possessed any firearm, for purposes of

the weapons-under-disability charge, so their admission did not contravene Evid.R.

404(B). Therefore, the evidence was properly admitted by the trial court.

       {¶52} The detective’s testimony about Pennington’s bullet tattoo and display
of pictures of shell casings came in response to a question about what evidence

contradicted Pennington’s claim that he did not know there were guns in his home.

The detectives had talked to Pennington about those items when they interviewed

him. Even though the testimony had little, if any, relevance, it was of such minor




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significance that no plain error occurred in its admission. See Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 73.

       {¶53} B. Hearsay statements of other pathologists. Pennington argues
that the trial court abused its discretion by admitting into evidence hearsay

statements from forensic pathologists who did not testify at trial. Because he asserts

that the admission of the evidence violated his rights under the Confrontation Clause

of the Sixth Amendment to the United States Constitution, we review the evidentiary

ruling de novo. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70

N.E.3d 508, ¶ 97.

       {¶54} Pennington asserts that his confrontation rights were violated by Dr.
Stephens’s testimony that she had consulted with three other pathologists, all of

whom agreed with her that Herald’s death was a homicide, and that, prior to that

consultation, she had been “99 percent convinced” of her conclusion. However,

defense counsel solicited the testimony on cross-examination when he asked Dr.

Stephens if it was true that she had told defense counsel, several months prior to

trial, that she had consulted other pathologists before arriving at her determination

that Herald’s death was a homicide. So any error in the admission of the other

opinions was invited error. See State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190,

813 N.E.2d 637, ¶ 75.      Under the invited-error doctrine, a party cannot take

advantage of an error that the party invited or induced the trial court to make. State

v. Wilks, Slip Opinion No. 2018-Ohio-1562, ¶ 66. So Pennington’s challenge to the

testimony on hearsay and confrontation grounds fails. See State v. Rucker, 1st Dist.

Hamilton No. C-110082, 2012-Ohio-185, ¶ 37.

       {¶55} During redirect examination, the state also asked Dr. Stephens a
follow-up question about her consultation with other pathologists. But because

defense counsel had opened the door to the question, the trial court properly allowed

it. See State v. Smith, 1st Dist. Hamilton No. C-170028, 2018-Ohio-2504, ¶ 37; State


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v. Robertson, 1st Dist. Hamilton Nos. C-070151 and C-070159, 2008-Ohio-2562, ¶

20.

       {¶56} C. Hearsay statement of Donny McKee.                   During redirect

examination, the prosecutor asked McKee if he remembered telling police that, in the

morning before she was shot, Herald had called him and told him to bring the stolen

items back or Pennington was going to kill her. McKee responded that he did not

recall making such a statement.

       {¶57} Pennington argues that the trial court erred by allowing the prosecutor
to introduce McKee’s hearsay statement into evidence through a leading question.

He acknowledges that, in responding to the prosecutor’s question, McKee did not

endorse the statement, but Pennington claims that its introduction was prejudicial

because it was the “only suggestion throughout the trial” of his motivation

to kill Herald.

       {¶58} Pennington did not object to the prosecutor’s question, and therefore
has forfeited all but plain error. See Crim.R. 52(B). Moreover, the question itself

was not evidence. See State v. Sandercock, 11th Dist. Ashtabula No. 2017-A-0061,

2018-Ohio-2448, ¶ 21; State v. Siller, 8th Dist. Cuyahoga No. 90865, 2009-Ohio-

2874, ¶ 58. And we presume that “the trial court can distinguish between what a

witness actually testifies to and what the state tries to get the witness to say even

when defense counsel failed to object.” State v. Alghaben, 8th Dist. Cuyahoga No.

86044, 2005-Ohio-6490, ¶ 30.      Indeed, the trial court had already sustained a

defense objection to the same question during the prosecutor’s direct examination of

McKee. Also, contrary to Pennington’s claim, there was ample other evidence in the

record revealing Herald’s fear that Pennington would harm her. See Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 210. No plain error occurred.

       {¶59} D. Other-acts evidence.       Pennington argues that the trial court

abused its discretion by admitting other-acts testimony about a prior allegation of


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domestic violence in violation of Evid.R. 404. In addition, he asserts that the there

were “no legitimate reasons to allow the prosecutor to ask about” the prior allegation.

       {¶60} Defense counsel asked defense witness Teaionna Richmond over
objection if Pennington had ever been violent with her. She responded, “No, never

violent, never raised a voice or anything.” On cross-examination, the prosecutor

asked if she knew whether Pennington had beaten any of his other girlfriends, and

she said no. Defense counsel objected when the prosecutor then asked about a

domestic-violence complaint issued in 2004 in which a former girlfriend alleged that

Pennington had struck her, and asked whether that would change the witness’s

opinion of Pennington. The trial court overruled the objection, stating that the

defense had “opened the door” to the question. Richmond responded, “Not from

what I know of him.”

       {¶61} Pennington asserts that the state improperly introduced evidence of a
domestic-violence allegation for which he had not been convicted for the improper

purpose of proving that he had acted in conformity with it. He contends that, even if

he had been convicted of the 2004 domestic-violence offense, Evid.R. 609 would not

have permitted the conviction to be used for impeachment purposes because it was

too remote in time, exceeding the rule’s ten-year time limit on such evidence.

       {¶62} We note that, contrary to Pennington’s assertion, no evidence of the
prior domestic-violence allegation was admitted. The prosecutor asked the witness

about the allegation, but did not introduce evidence related to it. We assume that the

court did not consider any such prior allegation.        We will, however, consider

Pennington’s assignment of error as challenging the trial court’s allowing of the

prosecutor’s question.

       {¶63} Under Evid.R. 404(A), character evidence is not admissible to prove
action in conformity therewith. State v. Morgan, 1st Dist. Hamilton No. C-160495,

2017-Ohio-7489, ¶ 9. But under Evid.R. 404(A)(1), “[e]vidence of a personal trait of


                                          15
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character offered by an accused, or by the prosecution to rebut the same is

admissible.” So if a defendant presents evidence of a specific character trait, the door

is opened for the prosecution to rebut that evidence. Id.

       {¶64} For example, if a defendant presents evidence of her or his good
character, the defendant opens the door for the state to rebut that claim. And under

Evid.R. 405(A), the state may do so by inquiring into relevant specific instances of

the defendant’s past conduct. See State v. Collins, 97 Ohio App.3d 438, 450, 646

N.E.2d 1142 (8th Dist.1994). Evidence of a defendant’s prior arrest for a violent

offense may be offered to impeach the character witness’s testimony that the

defendant had a reputation for nonviolence, even if the prior arrest did not result in a

conviction.   State v. Sims, 3 Ohio App.3d 321, 323-324, 445 N.E.2d 235 (8th

Dist.1981); see State v. Hart, 72 Ohio App.3d 92, 98, 593 N.E.2d 463 (10th

Dist.1991), citing Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 93

L.Ed. 168 (1948).

       {¶65} Contrary to Pennington’s assertion, the ten-year limitation under
Evid.R. 609 on the use of a prior conviction for impeachment purposes does not

apply if it is being used as a prior specific instance of conduct pursuant to Evid.R.

405. See Hart at 99. Under Evid.R. 609, evidence of a prior conviction is admissible

in certain circumstances for the purpose of attacking the witness’s own credibility,

whereas under Evid.R. 405(A), “allowing cross-examination of character witnesses

as to their having heard of prior convictions or arrests of a defendant shows whether

he has knowledge of defendant’s reputation and whether that knowledge influences

his opinion in any way.” Id., quoting United States v. Edwards, 549 F.2d 362, 367

(5th Cir.1977).

       {¶66} Here, the defense opened the door to the prosecutor’s question about
the 2004 domestic-violence complaint when defense counsel asked Richmond if

Pennington had ever been violent with her. So the trial court properly allowed cross-


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examination about Pennington’s prior arrest under Evid.R. 405(A) because it was

offered to challenge the character witness’s testimony about Pennington’s non-

violence. See Sims at 323-324.

       {¶67} E. Pennington’s claims related to the admission of evidence fail.
Because the trial court did not commit error, plain or otherwise, in admitting the

challenged evidence, we overrule the second assignment of error.

                              III.   Prosecutorial Misconduct


       {¶68} In his third assignment of error, Pennington argues that the
prosecution violated his right to due process by engaging in misconduct. Generally,

prosecutorial misconduct will not provide a basis for overturning a conviction unless,

on the record as a whole, the misconduct can be said to have deprived the defendant

of a fair trial. See McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at

¶ 257. The test for whether prosecutorial misconduct mandates reversal is whether

the prosecutor's remarks or actions were improper, and, if so, whether they

prejudicially affected the substantial rights of the accused. State v. Smith, 97 Ohio

St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45.

       {¶69} A. Impeachment during redirect examination. Pennington asserts
that “the state improperly impeached Donny McKee by threatening him with

prosecution if he did not testify as they wished.” He points to the prosecutor’s

questions on redirect examination about a conversation that McKee had with

prosecutors and a detective a few days before trial. Pennington failed to object, so

his challenge to the prosecutor’s conduct is reviewed for plain error. See id.

       {¶70} We conclude that the defense opened the door to the prosecutor’s
questions when defense counsel asked on cross-examination if McKee had felt

threatened by the prosecutors and detective during that conversation.             The

prosecutor followed up with questions about the conversation, the tenor of which



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was that McKee had been admonished to tell the truth at trial. We presume that the

trial court properly considered McKee’s testimony, and conclude that no plain error

occurred.

       {¶71} Pennington also points again to the prosecutor’s question on the
redirect examination of McKee about the statement he made to police shortly after

Herald’s murder about her fear of Pennington. Because he did not object to the

question, he cannot predicate error on it unless the trial court’s failure to intercede

amounted to plain error. See State v. Jones, 1st Dist. Hamilton No. C-160826, 2018-

Ohio-1130, ¶ 12. As we explained in our resolution of the second assignment of error,

the trial court did not commit plain error by permitting the question.

       {¶72} B. Questioning of a defense witness. Pennington argues that the
prosecutor improperly questioned Teaionna Richmond about his 2004 domestic-

violence arrest. We conclude that the prosecutor’s conduct did not amount to plain

error because, as we previously explained, the evidence was admissible after

Pennington opened the door with evidence of his nonviolent character.

       {¶73}    C. No prosecutorial misconduct occurred. Because the prosecutor

did not act improperly in questioning Richmond, and because no plain error

occurred in the prosecutor’s questioning of McKee, no misconduct occurred. We

overrule the third assignment of error.

                                IV.    Weight and Sufficiency


       {¶74} In his fourth assignment of error, Pennington challenges the weight
and sufficiency of the evidence upon which his murder conviction was based.

Specifically, he argues that the state failed to prove that he shot Herald.

       {¶75} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in a light most favorable to the state, any rational

trier of fact could have found all the essential elements of the crime proved beyond a



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reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. When considering a challenge to the weight of the

evidence, the court must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine

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

created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997).

          {¶76} Construing the evidence presented at trial in a light most favorable to
the prosecution, a rational trier of fact could have concluded beyond a reasonable

doubt that Pennington had purposely killed Herald, in violation of R.C. 2903.02(A).

After discovering that his ring was taken, Pennington was so angry with Herald that

he texted McKee to say that Herald’s life was his until he got his ring back. And

Herald’s text messages to McKee, her mother, and a friend, confirmed how angry

Pennington was about it.

          {¶77} In addition, Herald’s text messages to Burles indicated that she was
ready to leave Pennington’s home just minutes before she was shot. And in his 911

call, Pennington explained how Herald may have obtained a gun before relaying the

crucial information about her being shot. Then he lied to the dispatcher about the

handgun and the shotgun, and he lied about the guns during his later interview with

police.

          {¶78} And despite Pennington’s claim to police that after he heard the
gunshot and ran to his room, he had “instantly” grabbed the handgun and thrown it

on a shelf, two experienced investigators testified that the gun was too clean for

Herald to have shot herself. Pennington’s calm demeanor immediately after the

shooting stood out as unusual to a responding officer. And Dr. Stephens explained

her conclusion that the manner of death was homicide.




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       {¶79} Moreover, the trial court, as the trier of fact, was in the best position to
judge the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. The court was entitled to reject

Pennington’s claim to police that he had been downstairs when the shooting

occurred.

       {¶80} Consequently, we hold that the record contained sufficient evidence to
convict Pennington of murder, and his conviction was not against the manifest

weight of the evidence. We overrule Pennington’s fourth assignment of error.

                                    V.     Cumulative Error


       {¶81} In his fifth assignment of error, Pennington argues that the cumulative
effect of the trial errors deprived him of a fair trial. But since there were not multiple

instances of harmless error in the trial, the cumulative-error doctrine does not apply.

See State v. Leach, 150 Ohio App.3d 567, 2002-Ohio-6654, 782 N.E.2d 631, ¶ 57 (1st

Dist.). We overrule the fifth assignment of error.

                                             Conclusion


       {¶82} Therefore, we dismiss the appeal in the case numbered C-170199, and
we affirm the judgment of the trial court in the appeal numbered C-170200.

                                                                   Judgment accordingly.


MOCK, P.J., and DETERS, J., concur.



Please note:

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




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