[Cite as State v. Harner, 2020-Ohio-1184.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLINTON COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :      CASE NO. CA2019-05-011

                                                   :            OPINION
     - vs -                                                      3/30/2020
                                                   :

 JERRY WAYNE HARNER, SR.,                          :

        Appellant.                                 :




      CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                         Case No. CRI 18-500-220


Richard W. Moyer, Clinton County Prosecuting Attorney, Katie Wilkin, 103 E. Main Street,
Wilmington, Ohio 45177, for appellee

Jeffrey W. Stueve, 530 N. Broadway Street, Lebanon, Ohio 45036, for appellant



        PIPER, J.

        {¶ 1} Appellant, Jerry Harner Sr., appeals his conviction and sentence in the Clinton

County Court of Common Pleas for receiving stolen property and for having weapons while

under a disability.

        {¶ 2} In late July 2016, retired Ohio State Highway Trooper James Sears was

driving past a residence on Nauvoo Road in Clinton County. As he drove by, Sears saw a
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1968 Thunderbird camper he owned and had previously reported stolen sitting in a

driveway. Sears pulled into the driveway and called the sheriff's office. An investigation

was conducted and in October 2016, a search warrant was performed on the property.

During the search, officers discovered several other stolen items on the property, including

a 2003 Harley Davidson motorcycle, a 2016 United box trailer, a United UTX box trailer and

a 2016 Honda dirt bike. In addition, multiple firearms were discovered in the residence,

including several in the master bedroom.

      {¶ 3} Harner was charged with several fourth- and fifth-degree counts of receiving

stolen property and with a charge of having weapons under disability based on firearms that

were found in the residence.

      {¶ 4} At trial, the property owners testified that their property had been stolen.

Clinton County Sheriff's Detective Douglas Eastes testified regarding the search warrant

and the items that were discovered during the search. Eastes and an expert from the

National Insurance Crime Bureau ("NICB") explained how they determined the items were

stolen, based on identifying marks, including the use of identifying marks not known to the

public. In addition, the detective testified to discovering items with ground-off Vehicle

Identification Numbers (VIN) which were replaced with a homemade stamp comprised of

letters and numbers. The detective testified that when the numbers in the homemade stamp

were disregarded, the letters spelled "H-A-R-N-E-R."

      {¶ 5} A sheriff's deputy who assisted in the search testified and discussed the

discovery of firearms in a farmhouse on the property. He stated that he test fired some of

the weapons and determined they were operable. He also testified that he determined

Harner and Rebecca Martin, Harner's girlfriend, were living in the home based on items

found in the master bedroom, which included men's and women's clothes, a shoe box with

male and female sex toys, and credit cards with Harner's name and Martin's name on them.

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       {¶ 6} Detective Eastes testified that he was concerned with the discovery of

firearms in the house because he was aware that Harner had a previous drug conviction

which precluded him from possessing firearms. Eastes indicated that he also interviewed

some of the people on the scene during the search warrant. He testified that Martin, despite

having some of her property in the house, told him Harner lived in the house, but she did

not. Eastes testified that Harner was not present during the search, and the detective

attempted to make contact later, but Harner did not return messages.

       {¶ 7} Detective Eastes also testified that he spoke with a relative, Virginia Wallace,

during execution of the search warrant. Wallace told Eastes that she and her son lived in

a trailer which shares a common driveway with the farmhouse. Wallace told him that Martin

and Harner lived at the farmhouse.

       {¶ 8} At trial, Martin testified that she lived at the residence on Nauvoo Road with

children she has with Harner. She testified that she has a business and acquires vehicles

for salvage parts. She stated that Harner worked for her doing auto repair and service. She

testified that she bought some of the items at issue from other people and other items were

dropped off at the property for work to be performed on them. When questioned, she

indicated she did not have any documentation with her to support her statements.

       {¶ 9} According to Martin, at one point, Harner was living on the property, but he

agreed to move out so she could live there with the children. She did not remember exactly

when she moved in, but only that she was living in the house in August 2016 when the

children started school. She testified that Harner often came back to the property to see

his sons, but he did not live there.

       {¶ 10} Harner testified that in the spring and summer of 2016, he was in the process

of moving out of the property. He stated that he did not have a fixed address, but he was

not on the property on July 27, 2016. He indicated that he performs work for Martin on the

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property, but did not bring any documents, such as 1099 forms, to show his employment by

Martin.

       {¶ 11} A jury found Harner guilty of four counts of fourth-degree receiving stolen

property, one count of fifth-degree receiving stolen property and the third-degree felony

weapons under disability charge. He was sentenced to 12 months on each of the fourth-

degree felonies, 6 months on the fifth-degree felony and 14 months on the third-degree

felony. All of the sentences were ordered to run concurrently, for an aggregate sentence

of 14 months.

       {¶ 12} Harner now appeals his conviction and sentence, raising five assignments of

error for our review.      For ease of discussion, we begin by addressing Harner's third

assignment of error.

       {¶ 13} III.   THE     EVIDENCE     WAS      INSUFFICIENT      TO    SUPPORT        THE

CONVICTIONS AND THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 14} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would support a conviction. State v. Workman, 12th Dist. Clermont

Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 20. The relevant inquiry is

"whether, after viewing the evidence in a light most favorable to the prosecution, any rational

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

reasonable doubt." State v. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-

2321, ¶ 22.

       {¶ 15} To determine whether a conviction is against the manifest weight of the

evidence, the reviewing court must look at the entire record, weigh the evidence and all

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

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resolving the 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. State v. Bradbury,

12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17.             An appellate court will

overturn a conviction due to the manifest weight of the evidence only in extraordinary

circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id.

at ¶ 18. A determination that a conviction is supported by the manifest weight of the

evidence will also be dispositive of the issue of sufficiency. State v. Peyton, 12th Dist. Butler

No. CA2015-06-112, 2017-Ohio-243, ¶ 48.

       {¶ 16} In this assignment of error, Harner first argues that the evidence did not

support his conviction for receiving stolen property.        Specifically, he argues that the

evidence does not support a finding that he received, retained of, or knew that the property

was stolen. He contends that there is no evidence he was present during any of the theft

offenses, nothing contradicts his testimony that he was not there when the items were

dropped off, there was a reasonable explanation why the items were on the property, there

were numerous items on the property and only a small percent were identified as stolen

and there was a significant length of time between the time some of the items were stolen

and when they were discovered on the property. He further argues that it took a special

expert to determine some of the items were stolen and so it would be difficult for him as a

layperson to determine if the items were stolen. Finally, he argues that the only evidence

of receipt or retention was that he was a resident of the home on Nauvoo Road, and this

determination was made on conclusory or hearsay evidence.

       {¶ 17} R.C. 2913.51 defines the offense of receiving stolen property and provides

that "[n]o person shall receive, retain, or dispose of property of another knowing or having

reasonable cause to believe that the property has been obtained through commission of a

theft offense." A person has "reasonable cause to believe" property was obtained through

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a theft offense when, "'after putting oneself in the position of this defendant, with his

knowledge, lack of knowledge, and under the circumstances and conditions that

surrounded him at the time, the acts and words and all the surrounding circumstances would

have caused a person of ordinary prudence and care to believe that the property had been

obtained through the commission of a theft offense.'"         State v. Pangburn, 12th Dist.

Clermont No. CA2015-11-095, 2016-Ohio-3286, ¶ 15, quoting State v. Collins, 10th Dist.

Franklin No. 11AP-130, 2012-Ohio-372, ¶ 12. "Absent an admission by a defendant, the

question of whether the defendant had reasonable cause to believe an item was stolen can

only be proved by circumstantial evidence." State v. Rivera, 12th Dist. Butler No. CA2012-

11-220, 2013-Ohio-3203, ¶ 9.

       {¶ 18} "Because guilty knowledge may be inferred from the unexplained, or

unsatisfactorily-explained, receipt of stolen property, it is appropriate, in weighing this type

of evidence, to consider the personal interest and motivation of a defendant who tries to

distance himself from such items upon discovery." State v. Emery, 6th Dist. Lucas No. L-

11-1228, 2013-Ohio-208, ¶ 25.        Moreover, "[u]nder the 'reasonable cause to believe'

standard of R.C. 2913.51(A), a denial of knowledge is tested for reasonableness against

the context in which the denial is made." Id. A court "may also consider obvious gaps or

discrepancies in a putative explanation, its vagueness, and whether any attempt was made

to corroborate or prove it when the opportunity existed." Id.

       {¶ 19} The evidence presented at trial showed that the items were stolen and Harner

did not have permission to use them. Although Martin and Harner both testified that they

did not know the items were stolen, several of the items had identifying marks and numbers

tampered with. Some of the vehicles had homemade VIN numbers to replace the ground-

off original numbers. Others had stickers which left indications that the VINs had been

removed in order to hide their identity. Other items had been painted. In addition, although

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Martin and Harner both gave explanations regarding where the items came from, several

of the explanations were vague and without corroborating evidence. While the NICB expert

testified regarding how he determined the items were stolen, much of this testimony

involved techniques used to discover identifying marks and to locate the original owner.

The fact that an expert was necessary to locate owners does not negate the fact that on

examination, it was apparent that steps had been taken to conceal identifying marks on the

property.

      {¶ 20} With regard to Harner’s residence at the property, the state presented

evidence that Harner’s name was on the lease to the property and on an eviction action

which was instituted in 2017. In addition, the state presented evidence that men’s clothing

was found in the master bedroom of the house, along with male sex toys and a credit card

with Harner’s name on it.

      {¶ 21} Witnesses testified that Harner was on the property and that he lived there.

Deputy Boris testified that he had responded to a dispute on the property in 2015 and

Harner indicated he lived in the farmhouse.

      {¶ 22} Harner argues Sears' testimony that Harner was on the property when Sears

saw his stolen camper was contradictory. However, when read in context, the testimony

reveals otherwise. Sears testified that he drove by slowly and hit his brakes when he

recognized the camper as his, and he initially did not recognize any of the people on the

property who ran away. He testified, however, that when one of the people he had seen

running away came walking from behind the house, in the backyard, and circled behind

him, Sears recognized Harner. Sears indicated Harner's clothes, gait, height, and weight

matched one of the people he had seen running away. Sears also testified that he lived in

the area, knew Harner as a neighbor, and would see him almost daily.

      {¶ 23} After reviewing the transcripts and evidence submitted in this case, we find

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Harner's convictions for receiving stolen property were not against the manifest weight of

the evidence. The state produced evidence, which if believed would support the convictions.

While Harner and Martin provided explanations of why and how the stolen items were on

the property, when there is a conflict in the testimony of witnesses, it is for the trier of fact

to determine the weight and credibility to be given to such evidence. State v. Marcum, 12th

Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, ¶ 31, citing State v. DeHass, 10 Ohio St.

2d 230, paragraph one of the syllabus. The jury, as the trier of fact, was free to believe all,

part, or none of testimony of each witness. State v. Tanner, 12th Dist. Butler No. CA2018-

04-088, 2019-Ohio-1193, ¶ 38.

       {¶ 24} Harner also argues that his conviction for having weapons under disability

was not supported by sufficient evidence and was against the manifest weight of the

evidence. R.C. 2923.13 provides that "no person shall knowingly acquire, have, carry, or

use any firearm or dangerous ordnance" if the person has been convicted of a felony drug

offense.

       {¶ 25} Harner argues that the evidence does not support a finding that he acquired,

held, carried, or used firearms because the evidence does not support a finding that he was

a resident of the home where the firearms were found. However, as discussed above,

evidence was presented that if believed, established that Harner lived in the house where

the firearms were found.

       {¶ 26} Accordingly, we find that Harner's convictions for receiving stolen property

and having weapons while under a disability were not against the manifest weight of the

evidence. Because we have determined the convictions are not against the manifest weight

of the evidence, they are also supported by sufficient evidence.              Appellant's third

assignment of error is overruled.

       {¶ 27} I. THE APPELLANT WAS DENIED A FAIR TRIAL BY STATEMENTS MADE

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BY THE PROSECUTOR DURING CLOSING ARGUMENTS.

       {¶ 28} Harner argues that the prosecutor made improper comments during closing

arguments imputing Martin's actions to him and that he would not have been convicted if

Martin's actions had not been imputed to him.

       {¶ 29} The state is entitled to a certain degree of latitude in making its closing

remarks. State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 58.

For a conviction to be reversed because of prosecutorial misconduct, a defendant must

prove the prosecutor's acts were improper and that they prejudicially affected the

defendant's substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶ 62.

To demonstrate prejudice, a defendant must show that the improper acts were so prejudicial

that the outcome of the trial would clearly have been otherwise had they not occurred. State

v. Jones, 12th Dist. Butler No. CA2006-11-298, 2008-Ohio-865, ¶ 21. The focus of "an

inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon

the culpability of the prosecutor." State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-

Ohio-4769, ¶ 57. As such, prosecutorial misconduct "is not grounds for error unless the

defendant has been denied a fair trial." State v. Olvera-Guillen, 12th Dist. Butler No.

CA2007-05-118, 2008-Ohio-5416, ¶ 27.

       {¶ 30} In the comments Harner argues were improper and prejudicial, the prosecutor

stated that Harner was running a "chop-shop" with his girlfriend and discussed Martin's

credibility and the fact that charges against her had been dismissed, but she would "have

her day in court." Harner further argues that he was prejudiced by comments that Martin

and Harner were trying to "pull the wool over your eyes because they think they're smarter

than everyone else" and "can make fake documents and pass them off at the BMV in order

to cover their tracks." The prosecutor further commented that when the detective was called

to the stand on rebuttal, Harner and Martin "couldn't quit talking and looking at each other"

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because they knew Eastes had items to prove they lied to the jury.

       {¶ 31} Harner's counsel did not object to these comments at trial and we are

therefore limited to a review for plain error. State v. Warwick, 12th Dist. Preble No. CA2017-

01-001, 2018-Ohio-139, ¶ 30. Crim.R. 52(B) provides that "[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court." Plain error does not exist unless the error is obvious and, but for the error, the

outcome of the trial would have been different. State v. Yanez, 12th Dist. Butler No.

CA2016-10-190, 2017-Ohio-7209, ¶ 23. Notice of plain error is taken with the utmost

caution, under exceptional circumstances, and only to prevent a manifest miscarriage of

justice. State v. Grisham, 12th Dist. Warren No. CA2013-12-118, 2014-Ohio-3558, ¶ 38.

Prosecutorial misconduct may rise to the level of plain error only if it is clear from the record

that the defendant would not have been convicted in the absence of the improper

comments. State v. Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-1474, ¶ 43.

       {¶ 32} In context, the prosecutor's comments did not impute Martin's actions to

Harner, but instead were an attempt to focus the jury on Harner's culpability, not Martin's.

Martin's testimony attempted to explain the items' presence on the property and that Harner

was not involved.     However, her testimony was at times vague, confusing, and was

contradicted by other evidence. The prosecutor's comments merely instructed the jury to

look at Harner's guilt and not Martin's.      Moreover, a prosecutor may comment on a

defendant's reaction to the evidence presented, his demeanor and body language. State

v. Green, 90 Ohio St.3d 352, 373; State v. Erker, 8th Dist. Cuyahoga No. 107790, 2019-

Ohio-3185, ¶ 121.

       {¶ 33} Harner also argues that the prosecutor improperly commented on the fact that

Martin and Harner knew the trial was coming and had time to prepare documents to support

their claims that items were dropped off for work to be performed or purchased for the

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business. Counsel objected to this comment and the trial court sustained the objection.

         {¶ 34} This statement was a reflection of questions asked of Harner and Martin on

cross-examination regarding whether they had documents to support their testimony that

Martin was operating a business, Harner was working for her, and that the stolen items had

been purchased or dropped off for work to be performed. Both claimed that they had

documentation to support their testimony, but they did not bring it to trial. After the court

sustained the objection, the prosecutor then continued and clarified that Harner did not have

the burden of proof in the case, but he did not submit any evidence to support his testimony.

         {¶ 35} We find no error in the prosecutor's comments. The trial court sustained an

initial objection and the prosecutor then clarified that Harner did not have the burden of

proof.    The following discussion in closing arguments related to the believability and

credibility of the testimony. Accordingly, because we find no error in the comments, Harner

has not established prosecutorial misconduct in closing arguments.            Harner's first

assignment of error is overruled.

         {¶ 36} II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL.

         {¶ 37} In his second assignment of error, Harner argues that trial counsel was

ineffective for failing to object to inadmissible hearsay and improper arguments by the

prosecutor. He also argues counsel was ineffective for failing to introduce exculpatory

evidence or to proffer evidence.

         {¶ 38} To prevail on an ineffective assistance of counsel claim, an appellant must

show his trial counsel's performance was deficient, and that he was prejudiced as a result.

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's

performance will not be deemed deficient unless it fell below an objective standard of

reasonableness. Id. at 688. To show prejudice, appellant must establish that, but for his

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trial counsel's errors, there is a reasonable probability that the result of his trial would have

been different. Id. at 694.

       {¶ 39} A strong presumption exists that a licensed attorney is competent and that the

challenged action is the product of sound trial strategy and falls within the wide range of

professional assistance.      Id. at 689.   While the wisdom of a given strategy may be

debatable, trial tactics, even "debatable trial tactics," do not constitute a denial of effective

assistance of counsel. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146.

       {¶ 40} Harner argues that counsel was ineffective for repeatedly failing to object to

inadmissible hearsay. He argues he was prejudiced because the only evidence that he

lived at the farmhouse on the property was inadmissible hearsay. The statements made by

the detective and deputy during the performance of the search warrant detailed steps taken

during their investigation, including viewing records that indicated Harner lived on the

property and speaking to others, including Wallace, who stated that Harner lived in the

farmhouse.

       {¶ 41} We first note that despite Harner's argument to the contrary, there was other

evidence presented that indicated Harner lived on the property. In fact, Harner himself

admitted that he lived on the property, but stated that he was in the process of moving out

in the spring and summer of 2016. Given the fact that there is evidence that Harner at some

point lived on the property, even assuming the statements were hearsay, trial counsel may

have chosen not to object to the statements and to instead rely on testimony from Harner

and Martin that Harner was not living on the property when the stolen items and firearms

were discovered. It is not the role of the appellate court to second-guess the strategic

decisions of trial counsel, including whether to object. State v. Debord, 12th Dist. Clinton

No. CA2019-03-003, 2020-Ohio-57, ¶ 31.

       {¶ 42} Harner also argues that trial counsel was ineffective for failing to present

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exculpatory evidence. Harner claims that a folder of titles, work orders, receipts and

affidavits were submitted to trial counsel, but not presented as evidence. However, any

argument as to the effect of this evidence is speculative as this evidence is not in the record.

If counsel found the documentation to be less than authentic or genuine, it would be a matter

of sound trial strategy to not use the documents at trial.1 Establishing the prejudice from

the failure to submit this evidence at trial would require proof outside the record, which is

not appropriately considered on direct appeal. State v. Hartman, (2001), 93 Ohio St.3d

274, 299.

       {¶ 43} Accordingly, we find no merit to Harner's arguments that trial counsel was

ineffective and his second assignment of error is overruled.

       {¶ 44} IV.      THE SENTENCE IMPOSED IS CLEARLY CONTRARY TO LAW.

       {¶ 45} In his fourth assignment of error, Harner contends that his sentence for having

weapons under disability is contrary to law because it is outside the statutory range.

       {¶ 46} An appellate court reviews the imposed sentence according to R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. R.C. 2953.08(G)(2) provides that an appellate court can modify or

vacate a sentence only if the appellate court finds by clear and convincing evidence that

the record does not support the trial court's findings under relevant statutes or that the

sentence is otherwise contrary to law.

       {¶ 47} Having weapons while under disability is a third-degree felony.                       R.C.

2923.13(B). The possible sentences for a third-degree felony are 9, 12, 18, 24, 30 or 36

months. R.C. 2929.14(A)(3)(b). The trial court imposed a 14-month sentence for the




1. We further note counsel is not permitted to offer evidence he knows to be false and may refuse to offer
evidence in a criminal matter that he reasonably believes is false. Prof.Cond.R. 3.3(a)(3).


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offense, which is contrary to law.

       {¶ 48} Appellant acknowledges that he realizes the court may increase the sentence,

but argues increasing the sentence would not be appropriate and instead asks this court to

modify the sentence by reducing it to 12 months. The state acknowledges that the sentence

is contrary to law, but asks this court to modify the sentence by increasing to the next highest

available term, which is 18 months.

       {¶ 49} While an appellate court has the power to modify a sentence on appeal, in

this case, we find the appropriate course of action is to vacate the sentence and to remand

the case for the trial court to impose a sentence within the allowable range. Accordingly,

we find Harner's fourth assignment of error has merit. The 14-month sentence imposed for

having weapons under a disability is vacated and the case is remanded for the trial court to

impose one of the prison terms set forth in R.C. R.C. 2929.14(A)(3)(b).

       {¶ 50} V. THE CUMULATIVE EFFECT OF THE ERRORS OF THE TRIAL COURT

PREVENTED THE APPELLANT FROM RECEIVING A FAIR TRIAL.

       {¶ 51} Under the doctrine of cumulative error, "a conviction will be reversed where

the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a

fair trial even though each of numerous instances of trial court error does not individually

constitute cause for reversal." State v. McClurkin, 12th Dist. Butler No. CA2007-03-071,

2010-Ohio-1938, ¶ 105; State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 140.

Harmless or nonprejudicial errors cannot become prejudicial by sheer weight of numbers

alone. See State v. Hill, 75 Ohio St.3d 195, 212, 1996-Ohio 222 (1996).

       {¶ 52} In addition, "[i]t is not enough simply to intone the phrase 'cumulative error.'"

State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 197.               Without analysis or

explanation as to why or how the errors have had a prejudicial effect, an assignment of

error claiming cumulative errors has no substance. Id.; State v. Sapp, 105 Ohio St.3d 104,

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2004-Ohio-7008, ¶ 103.

       {¶ 53} Because we have found that no errors occurred during the trial, we find that

Harner was not deprived of a fair trial, and the cumulative error doctrine is inapplicable.

Harner's fifth assignment of error is, therefore, overruled.

       {¶ 54} In conclusion, we find no merit to Harner's first, second, third and fifth

assignments of error. Harner's fourth assignment of error is sustained, his sentence for

having weapons under a disability is vacated and the case is remanded to the trial court to

impose one of the prison terms set forth in R.C. 2929.14(A)(3)(b). In all other respects,

Harner's conviction and sentences are affirmed.

       {¶ 55} Judgment affirmed in part and reversed in part, and remanded for further

proceedings.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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