[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Harris, Slip Opinion No. 2015-Ohio-166.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2015-OHIO-166
             THE STATE OF OHIO, APPELLANT, v. HARRIS, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Harris, Slip Opinion No. 2015-Ohio-166.]
Evidence—R.C. 2945.371(J)—Mental-capacity defenses—Court-ordered mental
        evaluations—Allegations of malingering—When defendant asserts mental-
        capacity defense and then abandons it, psychologist’s testimony regarding
        defendant’s feigning of mental illness is inadmissible under R.C.
        2945.371(J)—Admission of such testimony also violates defendant’s right
        against self-incrimination guaranteed by Article I, Section 10 of the Ohio
        Constitution and the Fifth Amendment to the United States Constitution—
        Admission is not harmless error beyond a reasonable doubt.
   (No. 2013-0414—Submitted March 11, 2014—Decided January 22, 2015.)
              APPEAL from the Court of Appeals for Hamilton County,
                            No. C-110472, 2012-Ohio-349.
                                 _________________
        KENNEDY, J.
        {¶ 1} In this discretionary appeal from the First District Court of
Appeals, we consider whether R.C. 2945.371(J) permits the state to introduce, in
                             SUPREME COURT OF OHIO




its case-in-chief, the testimony of the psychologist who conducted the court-
ordered evaluation on the issues of competency and sanity when the defendant
asserts, but then wholly abandons, the defenses. The appellant, the state of Ohio,
advances the following proposition of law: “A psychologist’s trial testimony
regarding a defendant’s feigned mental illness during a competency and sanity
evaluation is admissible under R.C. 2945.371(J) when it does not include factual
evidence of guilt. It is admissible during the state’s case-in-chief to show the
accused’s intent to mislead and defraud authorities to escape prosecution.”
       {¶ 2} For the reasons that follow, based on these facts, we hold that
when a defendant asserts a mental-capacity defense or defenses, causing the court
to order a psychiatric evaluation, but then wholly abandons that defense or
defenses, a psychologist’s testimony regarding the defendant’s feigning of mental
illness during the evaluation is inadmissible in the state’s case-in-chief pursuant to
R.C. 2945.371(J).     We further hold that the admission of a psychologist’s
testimony opining on the defendant’s feigning of mental illness under these
circumstances violates the defendant’s right against self-incrimination guaranteed
by Article I, Section 10 of the Ohio Constitution and the Fifth Amendment to the
United States Constitution and that the violation was not harmless error. We
affirm the judgment of the court of appeals.
                         I. Facts and Procedural History
       {¶ 3} In late September 2010, Shane Gulleman contacted defendant-
appellee, Joseph Harris, in order to purchase Oxycontin from Harris.              On
September 26, 2010, Shane drove from Indiana to the Winton Terrace
neighborhood of Cincinnati, Ohio, to purchase the drugs. Shane’s body was later
discovered in his car. He had been shot multiple times. Two hundred ten dollars
in cash was on the seat under Shane’s body, and his wallet contained $20.
       {¶ 4} On October 29, 2010, Harris was indicted for aggravated murder,
murder, aggravated robbery, and having weapons under disability. Subsequently,




                                          2
                                January Term, 2015




Harris filed a suggestion of incompetence to stand trial (“IST”) and a plea of not
guilty by reason of insanity (“NGRI”).
        {¶ 5} The trial court appointed the Court Clinic Forensic Services to
examine Harris under R.C. 2945.371. Carla Dreyer, a clinical psychologist with
the Court Clinic, evaluated Harris. She determined that Harris was competent to
stand trial and that he did not meet the criteria for an NGRI plea. On February 2,
2011, the trial court filed an entry finding Harris competent to stand trial. Harris
never requested an independent evaluation or a competency hearing, and he never
challenged the trial court’s determination.
        {¶ 6} On May 12, 2011, Harris filed a notice of alibi, indicating his
intention to introduce evidence that he could not have perpetrated the murder.
Harris asserted that he had spent the entire day of the murder with his sister,
Joeisha Harris, her children, and his sister’s friend, Tasha Clayton, at Joeisha’s
home.
        {¶ 7} During the discovery phase, Harris did not formally withdraw his
NGRI plea, but on June 7, 2011, in response to the state’s demand for discovery,
he provided the names of the witnesses that he intended to call at trial. The
witness list did not include Dreyer or any other mental-health expert. While
Harris reserved the right to supplement his response, he never filed a
supplemental witness list.
        {¶ 8} The matter proceeded to a jury trial on June 15, 2011.
        {¶ 9} The state called Dreyer as a witness in its case-in-chief. Harris
objected to Dreyer being allowed to testify. In response, the state pointed out that
the notice of IST had been filed and that Harris’s NGRI plea was before the jury,
as it had not been withdrawn. The state indicated that Dreyer was going to testify
that Harris was malingering. At that time, Harris’s counsel represented to the
court that the defense had no intention of proceeding on any mental-capacity




                                         3
                             SUPREME COURT OF OHIO




theory and withdrew the suggestion of incompetence and the NGRI plea on the
record at that time. The trial court overruled Harris’s objection.
       {¶ 10} Dreyer testified that Harris had been referred by the trial court for
an evaluation of his competence to stand trial and for a determination whether he
was legally insane at the time of the offense. She stated that it was her opinion
that Harris was competent and that he did not meet the criteria for an NGRI plea.
She also testified that when she evaluated Harris, “he was malingering both
cognitive and psychiatric difficulties” and that Harris was “feigning some
symptoms and probably exaggerating others.” She described Harris as having
antisocial personality disorder, which is characterized by “impulsivity,
aggressiveness, irresponsibility, lack of regard for the rights of others, [and] lack
of remorse.” The state referred to this diagnosis in its closing argument and
added that a person with this disorder “commits crimes.”
       {¶ 11} Khristina Willis and Sherron Peoples both testified that they knew
Harris prior to the murder and that they saw him at or near the location of the
murder when the murder occurred.         Willis heard gunshots coming from the
parking lot where Shane’s body was found and saw Harris and another man
running away from the parking lot immediately afterwards. Peoples was sitting in
a car in the parking lot when Shane drove in and parked. She saw Harris get into
the front passenger side of Shane’s car and then she heard gunshots. Peoples saw
Harris and another man run by her with guns drawn.
       {¶ 12} Four inmates from the Hamilton County Justice Center testified.
They described various conversations with Harris in which he had stated that he
planned to rob Shane and had shot him multiple times with a .45 caliber gun. He
had talked about acting like he was crazy. Harris also had stated that because the
NGRI plea did not work, he was going to deny committing the murder and pin the
crime on another person.




                                          4
                                 January Term, 2015




         {¶ 13} Harris testified in his own defense. He admitted that he had met
Shane in order to sell him Oxycontin pills. Harris testified that when he got in
Shane’s car, Shane was acting shifty and seemed to be trying to distract Harris’s
attention from the exchange of cash for drugs. When Shane reached into the back
seat, Harris believed that Shane was reaching for a gun. Harris jumped out of the
car, started shooting, and ran off.
         {¶ 14} On June 28, 2011, the day after the jury began deliberations, the
trial court filed an entry finding that Harris had withdrawn his NGRI plea before
the case was submitted to the jury. On June 29, 2011, the jury found Harris guilty
as charged in the indictment. The trial court merged the counts of aggravated
murder and murder before sentencing.
         {¶ 15} Harris appealed his convictions to the First District Court of
Appeals. He argued that the trial court had erred when it allowed Dreyer to testify
as the testimony violated his Fifth Amendment privilege against self-
incrimination. State v. Harris, 1st Dist. Hamilton No. C-110472, 2012-Ohio-349,
¶ 19. The state countered that Dreyer’s testimony did not contain any statement
by Harris on the issue of guilt, but was evidence of his consciousness of guilt.
The First District rejected the state’s argument that Dreyer’s testimony was
admissible as evidence of consciousness of guilt.            The court cited R.C.
2945.371(J)’s prohibition on the use of statements made by a defendant in a
psychiatric evaluation against the defendant on the issue of guilt in a criminal
action and concluded that evidence of consciousness of guilt is evidence of guilt
itself. Id. at ¶ 23. The First District then applied the constitutional harmless-error
standard of review and determined that the error was not harmless beyond a
reasonable doubt, because Dreyer’s testimony might reasonably have affected the
jury’s view of Harris’s credibility when he testified that he had not intended to rob
Shane.    The court reversed Harris’s convictions for aggravated murder and




                                          5
                               SUPREME COURT OF OHIO




aggravated robbery and remanded the cause for a new trial on those charges and
accompanying specifications.
                                II. Law and Analysis
A.     Bases for Harris’s Mental-Health Evaluation
       1.         Competence
       {¶ 16} Consistent with the notions of fundamental fairness and due
process, a criminal defendant who is incompetent may not be tried or convicted.
See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); State v.
Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). A defendant is presumed
competent to stand trial.       R.C. 2945.37(G).     A defendant shall be found
incompetent to stand trial only if, “after a hearing, the court finds by a
preponderance of the evidence that, because of the defendant's present mental
condition, the defendant is incapable of understanding the nature and objective of
the proceedings against the defendant or of assisting in the defendant's defense.”
Id.
       2.         NGRI Plea
       {¶ 17} A plea of NGRI must be made in writing. Crim.R. 11(A) and R.C.
2943.04. NGRI is an affirmative defense that must be proven by a preponderance
of the evidence. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840
N.E.2d 1032, ¶ 35; R.C. 2901.05(A).          While the assertion of the defense is
controlled by rule and statute, there is no corresponding rule or statute governing
its withdrawal.
       {¶ 18} Precedent demonstrates that a defendant can withdraw the defense
formally, by entering a guilty or no-contest plea, by failing to pursue the defense,
or by pursuing a new defense at trial. See State v. Caudill, 48 Ohio St.2d 342,
342-343, 358 N.E.2d 601 (1976) (written withdrawal of plea); State v.
Langenkamp, 3d Dist. Shelby Nos. 17-07-08 and 17-08-09, 2008-Ohio-1136,
¶ 28-29 (plea of no contest); State v. McQueeney, 148 Ohio App.3d 606, 2002-




                                         6
                                January Term, 2015




Ohio-3731, 774 N.E.2d 1228, ¶ 34 (guilty plea); In State v. Monford, the court
determined that an NGRI jury instruction was not warranted, even though the
defendant had not withdrawn the affirmative defense, because the evidence
presented failed to support it. 190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d
634, ¶ 74-76. Additionally, in Miller v. State, the Supreme Court of South Dakota
rejected a postconviction-relief argument that the trial court failed to properly
instruct the jury on the defense of insanity, concluding that the record
overwhelmingly demonstrated that the NGRI plea had been abandoned to pursue
a theory of not guilty by reason of justification at trial. 338 N.W.2d 673, 676-678
(S.D.1983). See 5 LaFave, Israel, King & Kerr, Criminal Procedure, Section
20.5(c), 481 (3d Ed.2007) (after entering an NGRI plea, a defendant is free to
pursue another defense theory at trial).
B.     The Fifth Amendment and Compelled Psychiatric Evaluations
       {¶ 19} Our examination of the admissibility of the psychologist Dreyer’s
testimony pursuant to R.C. 2945.371(J) must begin with a historical overview of
the Fifth Amendment and its application to information garnered through a court-
ordered psychiatric evaluation of the accused. Article I, Section 10 of the Ohio
Constitution provides, “No person shall be compelled in any criminal case to be a
witness against himself * * *.” This language is essentially identical to the Fifth
Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct.
1489, 12 L.E.2d 653 (1964). This basic constitutional principle requires at its
core that “the State * * * produce the evidence against [the defendant] by the
independent labor of its officers, not by the simple, cruel expedient of forcing it
from his own lips.” Culombe v. Connecticut, 367 U.S. 568, 581-582, 81 S.Ct.
1860, 6 L.Ed.2d 1037 (1961). The availability of the Fifth Amendment rests
“upon the nature of the statement or admission and the exposure which it invites.”
In re Gault, 387 U.S. 1, 49, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967).



                                           7
                            SUPREME COURT OF OHIO




       {¶ 20} The United States Supreme Court has examined the applicability
of the Fifth Amendment privilege against compelled self-incrimination to
psychiatric evaluations. In Estelle v. Smith, 451 U.S. 454, 456, 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981), the court considered “whether the prosecution’s use of
psychiatric testimony at the sentencing phase of [the defendant’s] capital murder
trial to establish his future dangerousness violated his constitutional rights.” In
concluding that such evidence violated the privilege against self-incrimination,
the court reasoned that the “psychiatric evaluation of [the defendant was ordered]
for the limited, neutral purpose of determining his competency to stand trial, but
the results of that inquiry were used by the State for a much broader objective that
was plainly adverse to [the defendant].” Id. at 465.
       {¶ 21} Further, the court noted that the defendant had “introduced no
psychiatric evidence, nor had he indicated that he might do so. Instead, the State
offered information obtained from the court-ordered competency examination as
affirmative evidence to persuade the jury to return a sentence of death.” Id. at
466.   It was the view of the court that under these circumstances, “[the
psychiatrist] went beyond simply reporting to the court on the issue of
competence and testified for the prosecution * * *.” At that point, “his role
changed and became essentially like that of an agent of the State recounting
unwarned statements made in a postarrest custodial setting.” Id. at 467. The
court concluded that “[a] criminal defendant, who neither initiates a psychiatric
evaluation nor attempts to introduce any psychiatric evidence, may not be
compelled to respond to a psychiatrist if his statements can be used against him at
a capital sentencing proceeding.” Id. at 468.
       {¶ 22} In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97
L.Ed.2d 336 (1987), the court examined whether the Fifth Amendment privilege
was violated by the state’s introduction of a psychiatric report to rebut the
defendant’s affirmative defense of extreme emotional disturbance. The court




                                         8
                               January Term, 2015




recognized its acknowledgment in Estelle that the state may have an interest in
presenting psychiatric rebuttal evidence in some circumstances.          Id. at 422.
Accordingly, the court reasoned that the holding in Estelle “logically leads to
another proposition:    If a defendant requests such an evaluation or presents
psychiatric evidence, then, at the very least, the prosecution may rebut this
presentation with evidence from the reports of the examination that the defendant
requested.” Id. at 422-423. The court, therefore, concluded that the introduction
of the psychiatrist’s general observations about the mental state of a defendant for
the limited purpose of rebutting the defendant’s defense of extreme emotional
disturbance did not violate the Fifth Amendment. Id. at 424.
C.     History and Purpose of R.C. 2945.371
       {¶ 23} In 1978, the General Assembly enacted R.C. 2945.37, 2945.371,
and 2945.39 to address for the first time the procedures for evaluating the mental
condition of a defendant who has raised the issue of competency or entered a plea
of NGRI. Am.Sub.H.B. No. 565, 137 Ohio Laws, Part II, 2943-2952. This
enactment included former R.C. 2945.38(J), which prohibited the use in any
criminal action of any statement made by a defendant in an evaluation for
competence to stand trial on the issue of guilt. See id. at 2950-2951.
       {¶ 24} In April 1980, the legislature amended R.C. 2945.39 to add
subsection (D), which prohibited the use in any criminal action of any statement
on the issue of guilt made by a defendant in an evaluation for his mental state at
the time he committed the offense. Am.Sub.S.B. No. 297, 138 Ohio Laws, Part I,
991.
       {¶ 25} In State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989), we
considered the constitutionality and effect of R.C. 2945.39(D). Richard Cooey,
charged with capital murder, entered an NGRI plea but withdrew it upon the
submission of the psychiatric report. He was found guilty, and the trial court




                                         9
                             SUPREME COURT OF OHIO




proceeded with the penalty phase. The presentence investigation report (“PSI”)
that was considered by the court contained quotes from the psychiatric report.
       {¶ 26} Cooey challenged the constitutionality of former R.C. 2945.39(D),
arguing that by prohibiting the use of such statements only on the issue of guilt,
its language implied that statements made by the defendant during the evaluation
may be introduced on the issue of penalty, which, Cooey claimed, was
inconsistent with the Fifth Amendment.          Id. at 31.   We found the statute
constitutional, concluding that the language of (D) “distinguishes * * * between
the issues of guilt—i.e., factual guilt—and insanity” and, therefore, “statements
made in the course of a court-ordered psychological examination may be used to
refute his assertion of mental incapacity, but may not be used to show that he
committed the acts constituting the offense.”      Id. at 32. We further stated that
the use of the report was “limited to the issue of his mental condition.” Id. But
we concluded that the admission of certain statements in the PSI violated former
R.C. 2945.39(D), as the statements went to the degree of his involvement in the
crimes, i.e., his guilt, and were not admitted to rebut evidence of Cooey’s
psychological state. Id.
       {¶ 27} In 1997, the General Assembly substantially expanded the
procedures for evaluating the mental condition of a defendant who had raised the
issue of IST or entered a plea of NGRI. Am.Sub.S.B. No. 285, 146 Ohio Laws,
Part VI, 11168. R.C. 2945.39 was completely rewritten, and R.C. 2945.371(J)
appeared for the first time, containing both of the formerly separate prohibitions.
R.C. 2945.371(J) provides:


               No statement that a defendant makes in an evaluation or
       hearing under divisions (A) to (H) of this section relating to the
       defendant's competence to stand trial or to the defendant's mental
       condition at the time of the offense charged shall be used against




                                        10
                                January Term, 2015




       the defendant on the issue of guilt in any criminal action or
       proceeding, but, in a criminal action or proceeding, the prosecutor
       or defense counsel may call as a witness any person who evaluated
       the defendant or prepared a report pursuant to a referral under this
       section. Neither the appointment nor the testimony of an examiner
       appointed under this section precludes the prosecutor or defense
       counsel from calling other witnesses or presenting other evidence
       on competency or insanity issues.


       {¶ 28} While the legislative history for R.C. 2945.371(J) is scant, the
plain language of the statute strictly prohibits the use of a defendant’s statements
on the issue of guilt.    Further, it provides the Fifth Amendment protection
recognized in Estelle, Buchanan, and Cooey. Accordingly, R.C. 2945.371(J) also
prohibits the admission of evidence from the defendant’s psychiatric evaluation if
the defendant neither initiates the evaluation nor attempts to introduce any
psychiatric evidence.
       {¶ 29} Notwithstanding these restrictions on such testimony, the statute
preserves the state’s right to use such testimony for other matters. See Buchanan,
483 U.S. at 423-424, 107 S.Ct. 2906, 97 L.Ed.2d 336 (no Fifth Amendment
violation in admission of excerpts from psychological report containing general
observations of examiner concerning defendant’s mental state); State v. Franklin,
97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 64 (no error in instructing
jury that defendant’s statements during psychological evaluation could be
considered only on the issue of insanity and not on guilt).
D.     Application to Harris
       {¶ 30} Prior to trial, Dreyer reported to the trial court that Harris did not
meet the criteria for either incompetence or legal insanity. Harris did not request
an independent evaluation or a competency hearing, nor did he challenge the trial



                                         11
                              SUPREME COURT OF OHIO




court’s entry finding him competent.          Therefore, Harris had abandoned his
assertion that he was IST.
       {¶ 31} Additionally, the record demonstrates that Harris had abandoned
his NGRI defense after Dreyer’s report. Harris filed a notice of alibi on May 12,
2011, almost a month before trial began, signaling the abandonment of the
defense of NGRI in pursuit of another defense. An alibi defense, which proclaims
that the defendant could not have been the perpetrator, is incompatible with an
NGRI defense, which admits that he was the perpetrator of the offense, but
disclaims legal responsibility.
       {¶ 32} Moreover, at trial, Harris objected to Dreyer’s testimony,
acknowledging to the court that he did not meet the criteria for legal insanity, that
he had no intention of proceeding with the defense, and that he would withdraw
the NGRI plea at that time.
       {¶ 33} Accordingly, the record demonstrates that Harris had abandoned
his NGRI plea and would not be introducing psychiatric evidence at trial.
Therefore, Dreyer’s testimony regarding Harris’s feigning of mental illness was
inadmissible during the state’s case-in-chief pursuant to R.C. 2945.371(J).
       {¶ 34} We also find to be without merit the state’s contention that Harris’s
statements are admissible in the state’s case-in-chief because they do not include
factual evidence of guilt, but instead are evidence of his consciousness of guilt,
which, the state contends, shows his intent to mislead authorities and escape
prosecution. Consciousness of guilt is no different from guilt itself. State v.
Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969), vacated on other grounds
sub nom. Eaton v. Ohio, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972);
State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). Moreover, the
state’s claim that the evidence was offered not to prove guilt but to prove Harris’s
intent to avoid prosecution is disingenuous. The state reveals its true purpose
when it argues in its brief to this court that Dreyer’s testimony was relevant to




                                         12
                               January Term, 2015




show Harris’s “continuing efforts to manipulate witnesses and the court in order
to cover up his guilt in Gulleman’s robbery and murder.” (Emphasis added.)
E.     Harmless Error
       {¶ 35} As the trial court erred in permitting Dreyer to testify, we must
consider whether the admission of her testimony was harmless.
       {¶ 36} Crim.R. 52(A) defines harmless error in the context of criminal
cases and provides: “Any error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded.” Under the harmless-error standard
of review, “the government bears the burden of demonstrating that the error did
not affect the substantial rights of the defendant.” (Emphasis sic.) State v. Perry,
101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v.
Olano, 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In most
cases, in order to be viewed as “affecting substantial rights,” “ ‘the error must
have been prejudicial.’ (Emphasis added.)” State v. Fischer, 99 Ohio St.3d 127,
2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting Olano at 734. Accordingly,
Crim.R. 52(A) asks whether the rights affected are “substantial” and, if so,
whether a defendant has suffered any prejudice as a result. State v. Morris, ___
Ohio St.3d ___, 2014-Ohio-5052, ___ N.E.3d ___, ¶ 24-25.
       {¶ 37} Recently, in Morris, a four-to-three decision, we examined the
harmless-error rule in the context of a defendant’s claim that the erroneous
admission of certain evidence required a new trial. In that decision, the majority
dispensed with the distinction between constitutional and nonconstitutional errors
under Crim.R. 52(A). Id. at ¶ 22-24. In its place, the following analysis was
established to guide appellate courts in determining whether an error has affected
the substantial rights of a defendant, thereby requiring a new trial. First, it must
be determined whether the defendant was prejudiced by the error, i.e., whether the
error had an impact on the verdict. Id. at ¶ 25 and 27. Second, it must be
determined whether the error was not harmless beyond a reasonable doubt. Id. at



                                        13
                            SUPREME COURT OF OHIO




¶ 28. Lastly, once the prejudicial evidence is excised, the remaining evidence is
weighed to determine whether it establishes the defendant’s guilt beyond a
reasonable doubt. Id. at ¶ 29, 33.
       {¶ 38} In this instance, the erroneous admission of Dreyer’s testimony
violated Harris’s right against self-incrimination guaranteed by Article I, Section
10 of the Ohio Constitution and the Fifth Amendment to the United States
Constitution. There is no question that Harris placed his state of mind at issue
when he filed the suggestion of IST and entered a plea of NGRI. Nonetheless, at
the time Dreyer testified in the state’s case-in-chief, Harris had wholly abandoned
any mental-capacity defense and was not going to be introducing any psychiatric
evidence.
       {¶ 39} Further, Dreyer’s testimony regarding Harris’s feigning of mental
illness was an opinion as to Harris’s credibility. Judging Harris’s credibility was
not Dreyer’s role. See State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942
N.E.2d 1075, ¶ 64. Additionally, her opinion that Harris lacked veracity would
have caused a reasonable juror to judge Harris harshly. For example, her expert
opinion that Harris was feigning mental illness could reasonably have enhanced
the credibility of the jailhouse informants. More importantly, given the weight
the jury would likely have assigned to Dreyer’s testimony, a reasonable juror
would be inclined to view with suspicion Harris’s own testimony about the events
surrounding the shooting and his contention that he had not intended to rob Shane.
Consequently, there is a reasonable possibility that Dreyer’s testimony
contributed to Harris’s convictions.     Therefore, the erroneous admission of
Dreyer’s testimony had an impact on the verdict and was not harmless beyond a
reasonable doubt.
       {¶ 40} We next turn to a review of the strength of the remaining evidence
against Harris. Willis and Peoples testified that they knew Harris prior to the
murder and that they saw him at or near the location of the murder when the




                                        14
                                January Term, 2015




murder occurred. Willis testified that she heard gunshots coming from the area
where Shane’s body was found and that she saw Harris and another man running
away from the parking lot immediately after she heard the shots. Peoples testified
that she was sitting in a car in the parking lot when Shane drove in and parked.
She stated that she saw Harris get into the front passenger side of Shane’s car.
She then heard gunshots and saw Harris and another man run by her with guns
drawn.
         {¶ 41} Harris testified that he had met Shane on that day to sell him
Oxycontin pills. Harris testified that when he entered Shane’s car, Shane was
acting shifty and seemed to be trying to distract Harris’s attention from the
exchange of cash for drugs. When Shane reached into the back seat, Harris
believed that he was reaching for a gun. Harris jumped out of the car, started
shooting, and ran off.
         {¶ 42} Although four inmates testified that Harris had told them that he
had intended to rob and did, in fact, rob Shane, other trial testimony indicated that
Shane was found with $210 under his body with his wallet still in the car after the
shooting.
         {¶ 43} The state’s only evidence of robbery was the testimony of the
inmates, which directly contradicted Harris’s own testimony.         Therefore, the
state’s robbery case hinged on the jury’s determination of whose testimony was
more credible, the inmates’ or Harris’s. Because of Dreyer’s improperly admitted
testimony, the jury was unable to properly weigh credibility. Once Dreyer’s
testimony as to Harris’s credibility is excised, leaving the jury with that much less
of a basis for discounting Harris’s denials, it cannot be said that the inmates’
testimony established Harris’s guilt of the robbery charge beyond a reasonable
doubt.




                                         15
                              SUPREME COURT OF OHIO




          {¶ 44} After applying the analysis established in Morris, we hold that the
improper admission of Dreyer’s testimony was not harmless, as it affected
Harris’s substantial rights. Therefore, Harris is entitled to a new trial.
                                   III. Conclusion
          {¶ 45} Based on these facts, we hold that when a defendant asserts a
mental-capacity defense or defenses, causing the court to order a psychiatric
evaluation, but then wholly abandons that defense or defenses, a psychologist’s
testimony regarding the defendant’s feigning of mental illness during the
evaluation is inadmissible in the state’s case-in-chief pursuant to R.C.
2945.371(J). We further hold that the admission of a psychologist’s testimony
opining on the defendant’s feigning of mental illness under these circumstances
violates the defendant’s right against self-incrimination guaranteed by Article I,
Section 10 of the Ohio Constitution and the Fifth Amendment to the United States
Constitution and that the violation was not harmless error.
          {¶ 46} The judgment of the court of appeals is affirmed.
                                                                  Judgment affirmed.
          O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and O’NEILL, JJ.,
concur.
          FRENCH, J., concurs separately.
                                _________________
          FRENCH, J., concurring in judgment.
          {¶ 47} I join the majority’s conclusion that Dr. Dreyer’s testimony
violated Harris’s constitutional right against self-incrimination and that the error
was not harmless. I disagree, however, with the majority’s determination that Dr.
Dreyer’s testimony was inadmissible under R.C. 2945.371(J).                  That statute
prohibits the state from introducing certain statements that “a defendant makes in
an evaluation or hearing.” (Emphasis added.) In this case, the state did not
introduce any statements that Harris made during his evaluation; rather, it




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introduced Dr. Dreyer’s opinion that Harris was feigning mental illness. In my
view, R.C. 2945.371(J) simply does not apply, and the court of appeals erred by
relying on it.
                              _________________
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith
Anton Lapp, Assistant Prosecuting Attorney, for appellant.
        The Law Office of Wendy R. Calaway Co., L.P.A., and Wendy R.
Callaway, for appellee.
        Timothy Young, Ohio Public Defender, and Kristopher A. Haines,
Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public
Defender.
                            ___________________




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