[Cite as State v. Miller, 2020-Ohio-3854.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                        PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                   :        OPINION

                   Plaintiff-Appellee,            :
                                                           CASE NO. 2019-P-0030
          - vs -                                  :

 CAMERON M. MILLER,                               :

                   Defendant-Appellant.           :

 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2018 CR
 00672.

 Judgment: Affirmed in part, reversed in part, and remanded.


 Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
 Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

 Paul M. Grant, 209 South Main Street, 8th Floor, Akron, OH 44308 (For Defendant-
 Appellant).


MATT LYNCH, J.

        {¶1}       Defendant-appellant, Cameron M. Miller, appeals from his convictions for

Felonious Assault and Having Weapons While Under Disability in the Portage County

Court of Common Pleas. For the following reasons, we affirm in part and reverse in part

the judgment of the lower court and remand for further proceedings consistent with this

opinion.

        {¶2}       Beginning on July 12, 2018, several indictments, amended indictments, and

supplemental indictments were filed against Miller, arising from the same events.
Pursuant to the December 24, 2018 Amended Indictment, Miller was indicted by the

Portage County Grand Jury for the following: Attempted Murder (Count One), a felony of

the first degree, in violation of R.C. 2903.02(A) and 2923.02; Felonious Assault (Counts

Two and Five through Ten), felonies of the second degree, in violation of R.C.

2903.11(A)(2); Aggravated Robbery (Count Three), a felony of the first degree, in violation

of R.C. 2911.01(A)(1); and Having Weapons While Under Disability (Count Four), a felony

of the third degree, in violation of R.C. 2923.13(A)(3), (B), and (C), later amended to

include “(A)(2) and/or (3).” All counts contained firearm specifications pursuant to R.C.

2929.14 and 2941.145.

       {¶3}   On December 21, 2018, Miller filed a Motion to Dismiss for Double Jeopardy

in which he argued that he pled guilty to possessing the same firearm in a Summit County

case. The court denied the Motion in a January 2, 2019 Judgment Entry.

       {¶4}   A jury trial commenced on March 18, 2019.            The following pertinent

testimony was presented:

       {¶5}   Walter Collins testified that on September 5, 2016, he and DeAngelo Frost,

as well as Frost’s girlfriend, Monisha Hite, went to a Ravenna bar called the Den. During

the course of the evening, he had a beer and another alcoholic drink. While inside, he

observed Miller outside drinking with a few other individuals: Marquita Jordan, Ty Jordan,

and Miller’s girlfriend, Brianna Woods. Collins had known Miller for about six or seven

years because they were “around the same crowds.” Collins testified that he and Miller

had been in a fight previously.

       {¶6}   According to Collins, while at the Den that evening, Miller sent messages

inside the bar to Frost about him owing child support. Collins testified that at one point in




                                             2
the evening, he heard Marquita say that Frost owed her child support. Frost told Collins

that he knew Miller had a gun but was not worried about it.

      {¶7}   After spending some time inside the bar, Collins went outside and saw

Marquita and Monisha fighting. Collins then went around the corner and observed Miller

say to Frost “give me all your money.” Miller pulled out a gun and pointed it to Frost’s

head. Frost slapped the gun, which went up in the air, and ran. Collins described that a

few shots were fired, Frost ran around the corner toward Main Street, where another bar

named the Cimmaron was located, and a few additional shots were fired. He described

the shots as being fired in short succession. Collins did not see some of the shots

because he was hiding. The shots he saw were aimed in Frost’s direction and he believed

shots were fired in multiple directions. He described the gun used as a silver semi-

automatic and believed the gun presented by the State looked like the one used by Miller.

The first time Collins spoke to police was December of 2018 when police came to

NEOCAP where he was staying and questioned him about the shooting.

      {¶8}   During the shooting, several individuals were present outside the Cimmaron

bar approximately a block down the road.       Rachel Gulakowski, a bartender at the

Cimmaron, saw a group of approximately 11 to 12 people outside of the Den. She saw

someone running and heard about four or five gunshots. She observed red flashes that

looked like fire facing in her direction. Destiny Gonzales, a patron at the Cimmaron, was

there with her friends Kristin Papp, Jamie Dolin, Daniel Campbell, and Brian Henderson.

Gonzales described hearing a gunshot and believed a bullet came within a foot or two of

her. Papp said she heard “something” come toward them and became scared and

panicked but was unsure whether it was a bullet at the time, although she later believed




                                           3
it was. Dolin said she heard a “possible gunshot” and thought a bullet came within five

feet of her. None of these individuals saw the shooter or could identify him.

       {¶9}   Sergeant David Firtik of the Ravenna Police Department responded to a

911 call of a shooting at the Den, a bar located in downtown Ravenna which he described

as the scene of many past fights, at approximately 11:25 p.m. on September 5, 2016. He

spoke with a bartender who was able to identify two women, Brianna Woods and

someone she called “Marqueen,” present during the shooting. Eight spent shell casings

and two live rounds were located on the road and sidewalk in front of the Den, on the

southeast corner of the intersection of Meridian and Locust. The casings were from a

9mm semi-automatic gun. He testified that the casings showed the shooting took place

on the sidewalk or edge of the road outside of the Den. He believed the unspent bullets

demonstrated a likely malfunction with the gun.

       {¶10} Detective Duane Kaley of the Ravenna Police Department investigated this

case and characterized Miller and Frost as “street rivals.” He stated that other interviews

conducted had indicated Frost and Collins were present at the Den on the night of the

shooting, although he had difficulty obtaining witness cooperation. He explained that

Frost had been shot at in a Ravenna gas station parking lot on August 19, 2016, and the

day after the Den shooting, Miller was shot in Ravenna. Frost was a suspect in the latter

shooting.

       {¶11} Kaley also testified regarding recorded phone calls from the jail following

Miller’s arrest, in which Miller stated he had been “beefing” with Frost and the person on

the other end said “if it wasn’t for [Marquita Jordan] you shouldn’t have been amped up.”

       {¶12} Kaley indicated that he had interviewed Frost but did not recall parts of the




                                            4
interview. The prosecutor requested to play the audio of the taped interview to refresh

his recollection, to which the defense objected. The recording was played and the

following instruction was given to the jury: “Folks, remember, this statement is not being

made under oath by Mr. Frost. It is just part of the investigation and he’s not under oath.

Again, it’s just for the value that you may take away.” In the interview, Frost stated that

he had been at the Den on the night of the shooting and identified several others that

were present, including Collins. He stated that Marquita and Monisha, the mothers of his

children, got into a fight in front of the bar, which he tried to break up. According to Frost,

Miller, who he identified in a picture, pulled a gun out, Frost smacked the gun and then

ran away toward the Cimmaron. He heard shots being fired.

       {¶13} Scott Scislo, Miller’s parole officer from a prior offense, visited Miller’s

residence on September 16, 2016, after being advised by Detective Kaley that Miller was

the victim of one shooting and a suspect in another. Multiple people were present with

Miller in the residence and one man appeared to be trying to hide something in the couch

which led Scislo to conduct a search. During that search, he recovered a silver and black

Smith and Wesson handgun in the living room under a pile of clothes and next to

prescription medication bearing Miller’s name. He also collected a cell phone which Miller

admitted he owned. Scislo testified regarding a journal entry from Summit County which

showed Miller was convicted in November 2016 for Having Weapons While Under

Disability, relating to the recovery of the firearm from his residence. Daniel Brand of the

Summit County Clerk’s Office also testified to identify that entry.

       {¶14} Detective Ronald Kennedy of the Akron Police Department assisted with

the parole check. He testified that during an interview, Miller admitted owning the gun




                                              5
taken from his residence, described as a Smith and Wesson semi-automatic gun which

was silver with a black grip. He testified that Miller had stated he got it two weeks prior

because he had been shot twice in Ravenna.

        {¶15} Josh Barr, a forensic scientist with the Ohio Bureau of Criminal

Investigation, Firearms Section, tested the gun that was recovered at Miller’s residence

and compared it to the cartridge casings at the scene of the Den shooting. He testified,

to a reasonable degree of scientific certainty, that all eight fired casings matched test fire

from the gun that was recovered from Miller’s apartment.

        {¶16} Detective Jason Smallfield of the Ravenna Police Department examined

cell phone records and data that were extracted from the phone recovered from Miller. A

witness from T-Mobile, Ronald Witt, indicated that the cell phone records stated Miller

was the subscriber for that phone. According to Smallfield, there was no cell phone data

before September 7, 2016, which led in part to his belief that the cell phone was “wiped”

or “factory reset” which hides or destroys information on the phone. Smallfield indicated

that he could not state the exact time the phone was wiped clean or whether this occurred

more than once, although it was done sometime between September 6, 2016 at 2 a.m.

and September 7 at 2:30 p.m. He could pinpoint this timeframe by reviewing when

applications were reinstalled on the phone.           He also testified regarding phone

conversations Miller had with a female from the jail in which he asked her to “wipe” his

iCloud account and his phone and provided his password. He testified that photos and

videos with Cameron or his voice in them were on the phone as well as a picture of his

girlfriend.

        {¶17} Smallfield testified that Miller’s cell phone records showed a call made at




                                              6
10:42 p.m., approximately 45 minutes before the shooting, hit off of a cell phone tower

about a half mile from the site of the shooting. A call made at 11:42 p.m., after the

shooting, hit on a tower about a mile from the Den.           Smallfield opined that this

demonstrated the cell phone was within that area at those times. The records also

demonstrated that the cell phone was in the vicinity of the King Kennedy Center on

September 6, 2016, where Miller was shot on that day.

       {¶18} Detective Paul Fafrak of the Kent Police Department testified that Miller had

been convicted of trafficking in drugs and possession of cocaine in 2010 in the Portage

County Court of Common Pleas. He testified that this type of conviction would bar an

individual from possessing or owning firearms.

       {¶19} The defense called Brian Henderson, who was present at the Cimmaron

during the shooting. He testified that he heard gunshots, glanced over, and saw someone

shooting in the air. He did not see anyone push the shooter’s hand.

       {¶20} Following the close of the case, the defense raised multiple motions for a

mistrial relating to the jury and juror conduct, which were denied.

       {¶21} The jury found Miller guilty of one count of Felonious Assault, with Frost as

the victim, and Having a Weapon While Under Disability and the accompanying gun

specifications. He was acquitted of Attempted Murder, Aggravated Robbery, and the

remaining six counts of Felonious Assault, which related to the individuals who had been

present at the Cimmaron.

       {¶22} A sentencing hearing was held on February 19, 2019. Miller was ordered

to serve consecutive prison terms of eight years for Felonious Assault and three years for

Having a Weapon while Under Disability. The firearm specifications merged and he was




                                             7
ordered to serve an additional three years for the specification. This sentence was

memorialized in a February 20, 2019 Judgment Entry.

       {¶23} Miller timely appeals and raises the following assignments of error:

       {¶24} “[1.] The trial court erred as a matter of law when it reviewed a recorded

statement of the victim in violation of the due process clause of the 6th and 14th

Amendments to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio

Constitution.

       {¶25} “[2.] The trial court erred as a matter of law when it allowed evidence of

Miller’s prior conviction to which he stipulated and prior bad acts evidence in violation of

the due process clause of the 14th Amendment to the U.S. Constitution and Article I,

Sections 1, 10 & 16 of the Ohio Constitution.

       {¶26} “[3.] The trial court erred as a matter of law by allowing Miller to be

prosecuted twice for the same offense in violation of the due process clause of the 14th

Amendment to the U.S. Constitution, the Double Jeopardy Clause of the 5th Amendment

to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.

       {¶27} “[4.] Miller’s convictions are against the manifest weight of the evidence

possession [sic] in violation of the due process clause of the 14th Amendment to the U.S.

Constitution and Article I, Sections 1, 10, & 16 of the Ohio Constitution.

       {¶28} “[5.] The cumulative effect of the errors deprived Miller of a fair trial in

violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S.

Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution.”

       {¶29} As an initial matter, we will consider the first and second assignments of

error together as they both require application of a harmless error analysis which impacts




                                             8
the outcome of this matter. In his first assignment of error, Miller argues that the trial court

erred when it allowed the State to play a recorded interview with Frost during Detective

Kaley’s testimony to refresh his memory since Frost did not testify. He argues this

violated his constitutional right to confront Frost.

       {¶30} The Sixth Amendment to the United States Constitution provides: “In all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.” “[T]he admission of a testimonial hearsay statement made by a

declarant who does not testify at trial violates the Sixth Amendment unless (1) the

declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine

the declarant.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112,

¶ 173. “The Supreme Court held that the right to confrontation applies to all ‘testimonial

statements.’” State v. Wade, 11th Dist. Lake No. 2019-L-065, 2020-Ohio-2894, ¶ 31,

citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),

syllabus. The proper inquiry for a determination as to whether a statement is testimonial

is “‘whether a reasonable person in the declarant’s position would anticipate his statement

being used against the accused in investigating and prosecuting the crime.’” State v.

Metter, 11th Dist. Lake No. 2012-L-029, 2013-Ohio-2039, ¶ 35, quoting United States v.

Cromer, 389 F.3d 662, 675 (6th Cir.2004); Wade at ¶ 32, citing Davis v. Washington, 547

U.S. 813, 814, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (statements are testimonial when

there is no “ongoing emergency” and “the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution”). The

Supreme Court has held that testimonial statements include “at a minimum”: “prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and * * * police




                                               9
interrogations.” Crawford at 68.

       {¶31} “Although we generally review decisions on the admission of evidence for

an abuse of discretion, appellate courts apply a de novo standard of review to evidentiary

questions raised under the Confrontation Clause.” State v. Zaccone, 11th Dist. Trumbull

No. 2017-T-0070, 2018-Ohio-5340, ¶ 13, citing State v. Edwards, 11th Dist. Lake No.

2012-L-034, 2013-Ohio-1290, ¶ 24.

       {¶32} As an initial matter, the State argues that a plain error standard of review

should apply because Miller’s objection to allowing Frost’s interview to be played was

made pursuant to an Evid.R. 612 error, which relates to the circumstances under which

a writing may be used to refresh a witness’ recollection, not a constitutional violation.

Where an objection to an alleged Confrontation Clause violation is not raised, a plain error

standard of review is applied. State v. Habo, 11th Dist. Portage No. 2012-P-0056, 2013-

Ohio-2142, ¶ 35. “Plain error exists when it can be said that but for the error, the outcome

of the trial would clearly have been otherwise.” State v. Issa, 93 Ohio St.3d 49, 56, 752

N.E.2d 904 (2001).

       {¶33} When the prosecutor asked to play the recording of the interview with Frost,

defense counsel stated “I’ll object for the record.” After the tape began to play, counsel

asked to approach and stated: “Since, clearly, we’re going to be hearing statements from

DeAngelo Frost, I’d like to –an instruction to the Jury that this is not testimony, ‘cause if it

is testimony, then it’s got to be under oath and nothing he stated in that meeting is under

oath. So either we want an instruction to the Jury or Mr. Frost to come in and testify.”

When the State agreed to an instruction, defense counsel noted he was not withdrawing

the objection. The court instructed the jury that the statement made by Frost was not




                                              10
under oath and was “just part of the investigation” and was “just for the value that you

may take away.” On a subsequent day of trial, after Kaley’s testimony was complete,

defense counsel filed a motion for a mistrial, which cited the Sixth Amendment and the

Confrontation Clause.

        {¶34} While defense counsel did not specifically state the objection was on the

grounds of the Confrontation Clause prior to the playing of the recording, it was evident

he took issue with the testimonial nature of the statement and that Frost was not present

in court, which obviously prevented cross-examination.                    Nonetheless, under either

standard, the outcome would be the same, as addressed below.

        {¶35} The State concedes that Frost’s interview contained testimonial statements

which were the result of police attempting to establish events relating to criminal

prosecution, that were not made during an emergency, and the record did not indicate he

was unavailable for trial. Thus, the State admits that “Miller was denied the right to

confront his accuser in violation of the Sixth Amendment [and] the trial court erred in

allowing the State to play the recording to refresh Detective Kaley’s recollection.”1 We

agree that this is consistent with the record before this court and the law. Frost did not

testify in court, no reason was presented for his failure to testify, and his statements were

made to police questioning him in the investigation of the present crime, as well as other

shootings. Playing the recording implicated the Confrontation Clause as there was no

chance to cross-examine Frost and constituted error by the trial court. The State argues,




1. Although the State does not contend that admission of the recording to refresh Kaley’s recollection
excepts its admission from application of the Confrontation Clause, we still note that it has been held that
when evidence, such as a videotaped interview or a statement is being used to refresh a recollection, it
should not be played or read in open court. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971
N.E.2d 865, ¶ 57; State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 230-231.


                                                    11
however, that this error was harmless because it did not impact the jury’s verdict or result

in a manifest injustice. We will address this issue jointly with the second assignment of

error below.

       {¶36} In his second assignment of error, Miller argues that admission of evidence

of prior convictions to which he had stipulated constituted impermissible prior bad acts

evidence and was violative of his right to due process under State v. Creech, 150 Ohio

St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981.

       {¶37} “A trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” State v. Hoerig, 11th Dist. Trumbull No. 2019-T-0012,

2020-Ohio-1333, ¶ 59, citing Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991).

       {¶38} To obtain a conviction for Having Weapons While Under Disability pursuant

to R.C. 2923.13(A)(2) and/or (3) as contained in the indictment, the State had to prove

that Miller did knowingly acquire, have, carry, or use a firearm and that he had “been

convicted of” either “any felony offense of violence” or “any felony offense involving the

illegal possession, use, sale, administration, distribution, or trafficking in any drug of

abuse.”

       {¶39} “Pursuant to Evid.R. 403, in a case alleging a violation of R.C. 2923.13,

when the name or nature of a prior conviction or indictment raises the risk of a jury verdict

influenced by improper considerations, a trial court abuses its discretion when it refuses

a defendant’s offer to stipulate to the fact of the prior conviction or indictment and instead

admits into evidence the full record of the prior judgment or indictment when the sole




                                             12
purpose of the evidence is to prove the element of the defendant’s prior conviction or

indictment.” Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981, at ¶ 40. The

court noted that revealing the name and nature of the convictions can create a risk of

unfair prejudice: “‘if the evidence arouses the jury’s emotional sympathies, evokes a

sense of horror, or appeals to an instinct to punish, the evidence may be unfairly

prejudicial.’” (Citations omitted.) Id. at ¶ 36.

       {¶40} There is no question that Miller agreed to stipulate to the fact that he had a

prior drug conviction that prohibited him from possessing or using a firearm for the

purposes of a Having Weapons While Under Disability charge. Nonetheless, multiple

witnesses were permitted to testify as to the nature of the felony drug convictions,

identifying the drug offenses committed, and reference the judgment entries of conviction,

over defense counsel’s objections. The State concedes that under Creech, this was

impermissible as the evidence of the nature of the convictions was unnecessary to

establish the element of having a prior conviction. It contends, however, that reversal is

not warranted because it did not impact the jury’s verdict.

       {¶41} As to both the Confrontation Clause issue and the admission of the

testimony regarding the prior drug convictions, there is no question that error was

committed.     The question is whether the other evidence in the record was of an

overwhelming nature such that it could overcome this error and ensure that Miller was not

deprived of the right to a fair trial. We find that it is not.

       {¶42} “Confrontation Clause violations are subject to harmless error analysis.”

(Citation omitted.) Zaccone, 2018-Ohio-5340, at ¶ 33. “A constitutional error can be held

harmless if we determine that it was harmless beyond a reasonable doubt. * * * Whether




                                                13
a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an

inquiry into the sufficiency of the remaining evidence. Instead, the question is whether

there is a reasonable possibility that the evidence complained of might have contributed

to the conviction.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d

996, ¶ 78. A lack of prejudice exists where there is “other evidence of guilt” before the

jury that is “overwhelming.” Edwards, 2013-Ohio-1290, at ¶ 40.

       {¶43} Similarly, erroneous admission of evidence of bad acts under Evid.R 404(B)

can also be overcome where error is harmless. In such instances, the appellate court

“must consider both the impact of the offending evidence on the verdict and the strength

of the remaining evidence after the tainted evidence is removed from the record.” State

v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, syllabus. Where there

is “evidence of appellant’s guilt other than the record of his prior convictions” that is

“overwhelming,” failure to accept a stipulation to a prior conviction is harmless error. State

v. Irby, 11th Dist. Trumbull No. 2015-T-0018, 2015-Ohio-5467, ¶ 96-97.

       {¶44} While it could be argued that, taken individually, either the Confrontation

Clause error or the other bad acts error alone may not have resulted in an unfair outcome,

together, there is no question that this was the case. Under the doctrine of cumulative

error, “a conviction will be reversed when the cumulative effect of errors in a trial deprives

a defendant of a fair trial, even though each of the numerous errors does not individually

constitute cause for reversal” or harmless error. Neyland, 139 Ohio St.3d 353, 2014-

Ohio-1914, 12 N.E.3d 1112, at ¶ 257; State v. Goff, 82 Ohio St.3d 123, 140, 694 N.E.2d

916 (1998). The evidence properly before the jury could not overcome the cumulative

effect of admitting the improper evidence.




                                             14
       {¶45} Due to the errors, the jury was presented with evidence that Miller was the

type of defendant who possessed and trafficked drugs, specifically cocaine, resulting in

prejudice. Further, rather than weighing whether the testimony of Collins alone was

sufficient to identify Miller as the shooter, the jury had before it the statement of the victim,

who may have been best suited to identify Miller.           These glaring errors cannot be

overcome by the evidence in the record, which does not rise to the level of

“overwhelming.”

       {¶46} Only one witness testified who could identify Miller as the shooter, Collins.

Reasonable issues were raised regarding his credibility, including a prior dispute he had

with Miller, his criminal record and residence in NEOCAP, and that he had been drinking

on the night of the shooting. Despite all of the other individuals present at the Den during

the shooting, no other eyewitness testimony identifying Miller was presented.

       {¶47} While other pieces of evidence were present in the record to increase the

likelihood of Miller’s involvement, i.e., the firearm and cell phone record testimony, neither

of these act to identify Miller as the shooter. Such evidence could easily place him at the

bar with a different shooter borrowing his gun, since fingerprint and DNA evidence were

never collected from the gun by police, or even at another location in Ravenna. Similarly,

evidence such as jail phone call records show that Miller may have had some dispute

with Frost, not that he was involved in the shooting.

       {¶48} Taken together, this evidence is simply not sufficient to overcome the errors

made in the trial court. It can hardly be questioned that the jurors likely weighed in their

analysis the fact that the victim himself identified Miller as the shooter and this impacted

their calculus in reaching a verdict, especially given the limited advisement by the judge




                                               15
that Frost’s statements were “just for the value that you may take away.” See Edwards,

2013-Ohio-1290, at ¶ 38 (“[m]ost testimonial statements are too damaging for a lay juror

to separate and/or ignore”). Harmless error is found where the court can be assured that

the mistakes made below did not impact the outcome of the trial; given the gravity of the

improperly admitted evidence, the underwhelming nature of the other evidence, and the

degree to which these were intertwined, this court cannot find the error was harmless.

See State v. Brown, 2013-Ohio-1099, 988 N.E.2d 924, ¶ 79 (11th Dist.) (rejecting the

doctrine of harmless error where the “paucity of supplementary direct, as well as

circumstantial evidence” could not “overcome the prejudice appellant sustained as the

result of” improperly admitted evidence, and there was a “substantial risk that the jury

relied upon [an improperly admitted statement] in arriving at its verdict”).

       {¶49} For the foregoing reasons, we reverse Miller’s convictions for Felonious

Assault and Having Weapons While Under Disability and remand for a new trial.

       {¶50} We note, however, for the purposes of clarification upon retrial, that as to

the “other acts” evidence of Having Weapons While Under Disability, the written

stipulation entered by Miller stated only that he stipulated to a prior drug conviction and

did not address the disability conviction. Regardless, the State contends that testimony

and evidence about this prior conviction was properly admitted pursuant to Evid.R. 404

to show his possession and ownership of the gun used in the shooting, not as a prior bad

act. We agree.

       {¶51} Pursuant to Evid.R. 404(B): “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,




                                             16
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”

       {¶52} The testimony presented established that he was convicted of a prior

Having Weapons While Under Disability offense and that this was the result of Miller’s

entry of a guilty plea for possessing the firearm discovered in his apartment. This helped

to demonstrate his ownership of the gun that was used in the Den shooting. It has been

held that the general rule of excluding other acts evidence “does not apply where the

evidence of another crime is relevant and tends directly * * * to prove * * * [the] accused’s

guilt of the crime charged” and that evidence of prior criminal acts can be introduced for

the purpose of establishing possession of the gun used in the present crime. (Citation

omitted.) State v. Watson, 28 Ohio St.2d 15, 20-22, 275 N.E.2d 153 (1971). Under these

circumstances, where the conviction demonstrated admission to possession of the same

weapon used in the Den shootings and it was not admitted to show the character of Miller

to demonstrate conformity therewith, evidence of this conviction was not prohibited under

Evid.R. 404(B).

       {¶53} The first and second assignments of error are with merit.

       {¶54} In his third assignment of error, Miller argues that the court erred by allowing

him to be prosecuted twice for the offense of Having Weapons While Under Disability.

He contends that double jeopardy applies because he was charged twice for possession

of the same gun. As this issue may be implicated on remand, we will address it here.

       {¶55} The Fifth Amendment to the United States Constitution and Article I, Section

10 of the Ohio Constitution provide that no person shall be “twice put in jeopardy” for

committing the same offense. The Double Jeopardy Clause prohibits “(1) a second




                                             17
prosecution for the same offense after acquittal, (2) a second prosecution for the same

offense after conviction, and (3) multiple punishments for the same offense.” (Citation

omitted.) State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996).

      {¶56} A de novo standard of review is applied to the trial court’s determination

regarding the application of the double jeopardy clause.       State v. Silka, 11th Dist.

Ashtabula No. 2015-A-0053, 2016-Ohio-5784, ¶ 11.

      {¶57} Miller highlights the standard set forth in Blockburger v. United States, 284

U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The Blockburger test applies ‘where the

same act or transaction constitutes a violation of two distinct statutory provisions’ and

requires the reviewing court to evaluate the elements of each statutory provision to

determine ‘whether each provision requires proof of a fact which the other does not,’”

which test focuses on “the elements of the two statutory provisions,” rather than the

evidence. (Citation omitted.) State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82

N.E.3d 1141, ¶ 17, citing Blockburger at 304. As noted by the State, this provides little

guidance in the present instance as there is no question the two offenses for which Miller

was convicted have the same statutory elements, as they are the same crime, and this is

not an instance where there is a violation of “two distinct statutory provisions.” The

question is whether there were two separate criminal acts when Miller possessed the

weapon at different times which justified being convicted of the same offense, Having

Weapons While Under Disability, on multiple occasions.

      {¶58} Double jeopardy in relation to multiple offenses of having weapons under

disability has generally been raised in relation to merger issues and separate

punishments. The analysis conducted in both the case of merger and prosecution for the




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same offense is similar in that it addresses whether different offenses have been

committed by the defendant’s conduct. In both instances, courts consider whether the

acts were “committed separately.” State v. Elersic, 11th Dist. Lake No. 2002-L-172, 2004-

Ohio-5301, ¶ 43 (“[b]ecause appellant’s two acts were committed separately resulting in

two separate offenses, double jeopardy protection does not apply”); State v. Ruff, 143

Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 (2015), paragraph three of the syllabus

(offenses “committed separately” do not merge as allied offenses).

       {¶59} Courts addressing the issue in the context of convictions for possessing

multiple weapons while under disability have found that R.C. 2923.13’s intent is to focus

on the “transaction of having the weapons.” State v. Johnson, 11th Dist. Trumbull No.

2016-T-0091, 2018-Ohio-2465, ¶ 43, citing State v. Pitts, 4th Dist. Scioto No. 99 CA 2675,

2000 WL 1678020, *13 (Nov. 6, 2000). Applying similar logic, here there were separate

“transactions” of having the weapon. The gun was in Miller’s possession at different

times, once being used in a crime and another time being present at his home over a

week later. Courts have held that the crime of having a weapon under disability was

committed by separate conduct when a gun was possessed by a defendant during

separate crimes on different days. See State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-

4347, 54 N.E.3d 80, ¶ 216-217 (finding weapons-under-disability offenses were

committed with separate conduct when the defendant “possessed a handgun on four

separate occasions at different times and locations” and allowing a sentence for each of

the four offenses); State v. Talley, 2016-Ohio-8010, 74 N.E.3d 868, ¶ 29-30 (6th Dist.)

(“the two offenses were separated by a period of four days and were thus committed

separately”).




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       {¶60} Miller’s rationale here would lead to a conclusion that a person under a

weapons disability could only be prosecuted once for such disability, an intent we do not

believe is present in R.C 2923.13. Further, to the extent that the argument arises because

the firearm was the same in both offenses, as noted above, it has been held that the

“transaction” is relevant rather than the firearm itself. See Johnson at ¶ 43.

       {¶61} Miller’s citation to State v. Scott, 8th Dist. Cuyahoga No. 103696, 2016-

Ohio-5929, in support of his argument is unavailing as it involved a different set of

circumstances. In Scott, the defendant committed one act, shooting the victim, and was

convicted of felonious assault and having weapons while under disability. Several years

later, when the victim died as a result of complications from the shooting, Scott was

convicted of voluntary manslaughter and having weapons while under disability. Id. at ¶

3-4. The court found double jeopardy applied to the disability charge because it stemmed

from a single act: shooting the victim. Id. at ¶ 13. He did not possess the gun on more

than one occasion or have more than one gun; he was wrongfully convicted of the exact

same act twice. Here, the charges do not both arise from possessing the gun during the

shooting but possessing the gun in different places on different dates. As we find double

jeopardy does not apply, it is proper to proceed with retrial of the offense of Having

Weapons While Under Disability upon remand.

       {¶62} The third assignment of error is without merit.

       {¶63} In his fourth assignment of error, Miller argues that his convictions were

against the manifest weight of the evidence. In his fifth assignment of error, Miller argues

that the foregoing errors, combined with additional errors committed at trial, warrant

reversal under the doctrine of cumulative error. Since the appropriate remedy for any




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potential error alleged here would be to order a new trial, such arguments are rendered

moot by our disposition of the first and second assignments of error ordering a new trial.

      {¶64} The fourth and fifth assignments of error are moot.

      {¶65} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed in part, reversed in part, and this matter is remanded for further

proceedings consistent with this opinion. Costs to be taxed against the parties equally.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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