[Cite as State v. Rhines, 2012-Ohio-3393.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO.        24417

v.                                                   :        T.C. NO.   10CR809

ANTWAN RHINES                                        :        (Criminal appeal from
                                                               Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                             ..........

                                             OPINION

                         Rendered on the      27th   day of     July     , 2012.

                                             ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio
45459
      Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Antwan Rhines appeals his conviction and sentence for
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aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2)(a), a felony of the third

degree; three counts of vehicular assault, in violation of R.C. 2903.08(A)(2)(b), all felonies

of the fourth degree; one count of receiving stolen property, in violation of R.C. 2913.51(A),

a felony of the fourth degree; and one count of failure to stop after an accident, in violation

of R.C. 4549.02, a misdemeanor of the first degree. Rhines filed a timely notice of appeal

with this Court on January 3, 2011.

       {¶ 2}    The basis for the instant appeal occurred on December 12, 2008, when a

stolen Chevrolet Malibu driven by Rhines crashed into two vehicles, a Toyota Sienna

minivan and Pontiac Grand Prix, after running a red light at the intersection of South Main

and Washington Streets in downtown Dayton, Ohio. The driver of the Grand Prix, Dwayne

Bullock, died as a result of injuries sustained in the accident.        The remaining three

passengers: Bullock’s wife, Dara; Bullock’s brother, Joseph Bullock; and Joseph’s fiancee

(now wife), Amanda, sustained serious injuries requiring long term medical treatment. The

driver of the Sienna, Tammy Dolphin, did not suffer any injuries in the collision.

       {¶ 3}    After crashing into the two vehicles, Rhines fled the scene of the crash on

foot and was apprehended by Dayton Police Sergeant Mark Ponichtera at the intersection of

5th Street and Main, a short distance from the accident. Sgt. Ponichtera testified that Rhines

was walking with a pronounced limp when he was apprehended. Rhines also met the

description of an individual observed climbing out of the stolen Malibu and fleeing the

scene of the crash.

       {¶ 4}    On May 5, 2010, Rhines was indicted for aggravated vehicular homicide,

three counts of vehicular assault, one count of receiving stolen property, and one count of
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failure to stop after an accident. At his arraignment on May 25, 2010, Rhines pled not

guilty to all of the counts in the indictment. After a five day jury trial beginning on October

18, 2010, and ending on October 22, 2010, Rhines was found guilty of all counts in the

indictment. On December 30, 2010, the trial court sentenced Rhines to five years in prison

for the aggravated vehicular homicide, eighteen months in prison for each count of vehicular

assault, eighteen months in prison for receiving stolen property, each of those counts to run

consecutive to one another, for an aggregate term of eleven years in prison. The trial court

sentenced Rhines to six months in prison for failure to stop after an accident, but ordered the

sentence to run concurrent with the other counts. The trial court also suspended Rhines’

drivers license for twenty-five years.

       {¶ 5}    It is from this judgment that Rhines now appeals.

       {¶ 6}    Rhines’ first assignment of error is as follows:

       {¶ 7}    “JUROR         MISCONDUCT             OCCURRED           DURING         JURY

DELIBERATIONS TO THE DETRIMENT OF DEFENDANT, AND AS SUCH,

DEFENDANT WAS DENIED A FAIR TRIAL.”

       {¶ 8}    In his first assignment, Rhines contends that the trial court erred by allowing

members of the jury to takes notes during the trial. Rhines further argues that the trial court

erred when it allowed the jurors to use their notes as substantive evidence during

deliberations. Rhines asserts that this occurred because the trial court failed to instruct the

jury regarding the use of their notes during deliberations.

       {¶ 9}    A trial court has the discretion to either permit or prohibit note taking by

jurors. State v. Waddell, 75 Ohio St.3d 163, 1996-Ohio-100, 661 N.E.2d 1043.           Rhines
                                                                                                4

complains that the jurors should not have been allowed to take notes, citing general concerns

over the potential for distracting jurors from concentrating on witnesses and the evidence.

Rhines argues that the facts presented at trial were relatively uncomplicated. Thus, Rhines

asserts that it was unnecessary for the jurors to take notes. Rhines, however, failed to object

to the trial court’s decision to permit note-taking by jurors at any point during trial. By

failing to object at trial, Rhines has waived all but “plain error.” State v. Waddell, 75 Ohio

St.3d at 166. Plain error does not exist unless but for the error the outcome of the trial

clearly would have been otherwise. State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913

(1990); State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).

        {¶ 10} Initially, we note that there is no requirement that a case be deemed

“complicated” before jurors are permitted to take notes. Nevertheless, we note that the

record establishes that over twenty witnesses testified during the course of the five-day trial.

In our view, the large number of witnesses who testified coupled with the length of the trial

supports the trial court’s decision to permit the jury to take notes, and the court did not abuse

its discretion in this regard. Additionally, Rhines has failed to establish that but for the trial

court’s decision to permit note taking by the jurors, the outcome of the trial would have been

any different.

        {¶ 11} We further note that, contrary to Rhines’ assertion in his merit brief, the trial

court did properly instruct the jury regarding note taking and its use of said notes during

deliberations.   During its preliminary instructions to the jury immediately prior to the

beginning of the trial, the trial court instructed the jury as follows:

        The Court: During this trial the court will permit the jurors to take
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        notes. If you desire to do so, you may do that. No juror is required

        to take notes. The taking of notes is entirely a matter of personal

        choice for each juror. The jurors who choose not to take notes must

        not be influenced by those who do take notes. The fact that the notes

        taken by a juror support his or her recollection in no way makes his or

        her memory more reliable than that of other jurors who do not take

        notes.

        Notes are merely a memory aid, and must not take precedence over your

        independent memory of the facts. Do not let the taking of notes divert your

        attention from what is being said or is happening at the courtroom during the

        trial. Some persons believe that taking notes is not helpful because it may

        distract a person’s attention and interfere with hearing all the evidence. All

        notes are confidential for the consideration of that juror only. Each note

        taker will leave his or her notes on the chair during breaks and at the end of

        the day will be collected by the Bailiff. When deliberations take place you

        will be permitted to take your notes into the jury room and use them as a

        memory aid. All notes will be returned to the Bailiff for destruction at the

        time that the jury is discharged.

        {¶ 12} The preliminary instruction provided by the trial court mirrors the language

set forth in Ohio Jury Instruction-CR 401.19 regarding note taking by jurors during trial.

Accordingly, the trial court properly instructed the jury regarding its ability to take notes

during the trial.
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       {¶ 13} Lastly, Rhines asserts that the jurors improperly used their notes during

deliberations by sharing the contents of their notes with one another. Thus, Rhines argues

that the trial court erred when it overruled his motion for new trial based upon his claim of

juror misconduct with respect to the alleged sharing of notes taken during trial. With the

exception of his unsupported allegation that jurors improperly shared and compared their

notes during deliberations, Rhines did not adduce any evidence in the record which

establishes that the jurors who took notes shared the contents of their notes with other jurors.

 We also note that Rhines failed to attach any affidavits to his motion for a new trial which

support his contention that the jurors acted improperly. Simply put, there is no evidence of

how the jurors used their notes during deliberations, if, in fact, any notes were even taken.

Accordingly, the trial court did not err when it permitted the jurors to take notes during the

trial after providing the jury with the proper preliminary instruction taken verbatim from

OJI-CR 401.19.

       {¶ 14}    Rhines’ first assignment of error is overruled.

       {¶ 15}    Rhines’ second assignment of error is as follows:

       {¶ 16} “THE TRIAL COURT PREJUDICED DEFENDANT THROUGH ITS

IMPROPER USE OF THE DYNAMITE/HOWARD CHARGE TO THE JURY.”

       {¶ 17} In his second assignment, Rhines argues that the trial court erred when it

gave a dynamite/Howard charge to the jury after learning that the jury was deadlocked.

State v. Howard, 42 Ohio St.3d 18, 537 N.E. 2d 188 (1989). Specifically, Rhines asserts

that the trial court violated his right to a fair trial by coercing an otherwise deadlocked jury

into rendering a guilty verdict.
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       {¶ 18} The record indicates that prior to giving the dynamite charge to the jury, the

trial court asked both parties if they agreed with the court’s decision to provide the

supplemental Howard instruction to the jury. Both parties agreed on the record, and the

trial court subsequently gave the dynamite charge to the jury in open court. Neither the

State nor the defense objected to the instruction as provided by the trial court to the jury.

       {¶ 19} By acquiescing to the trial court’s proposal to submit the dynamite charge to

the jury, Rhines waived any error made by the trial court regarding the charge and cannot

now complain that he was prejudiced.          Furthermore, we note that the jury had been

deliberating for over eleven hours when the instruction was given, hardly premature under

such circumstances.

       {¶ 20} Rhines’ second assignment of error is overruled.

       {¶ 21} Rhines’ third assignment of error is as follows:

       {¶ 22} “DEFENDANT’S            CONVICTION         IS   AGAINST        THE    MANIFEST

WEIGHT OF THE EVIDENCE.”

       {¶ 23} In his third assignment, Rhines argues that his conviction is against the

manifest weight of the evidence.

       {¶ 24} As this Court has previously noted, in a weight of the evidence challenge, an

appellate court:

               “[R]eview[s] the entire record, weighs the evidence and all reasonable

       inferences, considers the credibility of witnesses and determines whether in

       resolving conflicts in the evidence, the jury clearly lost its way and created

       such a manifest miscarriage of justice that the conviction must be reversed
                                                                                        8

       and a new trial ordered. The discretionary power to grant a new trial should

       be exercised only in the exceptional case in which the evidence weighs

       heavily against the conviction. State v. Thompkins (1997), 78 Ohio St.3d

       380, 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175.” State v.

       Pierre, 2d Dist. Montgomery No. 18443, 2001 WL 220239 (March 2, 2001).

       {¶ 25} Although Thompkins explicitly permits this Court to consider credibility

when confronted with an argument that the verdict is against the manifest weight of the

evidence, such consideration is not unbounded. We have explained the limited role of an

appellate court in reviewing issues of credibility in weight of the evidence challenges as

follows:

              Because the factfinder, be it the jury or *** trial judge, has the

       opportunity to see and hear the witnesses, the cautious exercise of the

       discretionary power of a court of appeals to find that a judgment is against

       the manifest weight of the evidence requires that substantial deference be

       extended to the factfinder’s determinations of credibility. The decision

       whether, and to what extent, to credit the testimony of particular witnesses

       is within the peculiar competence of the factfinder, who has seen and heard

       the witness. Contrastingly, the decision as to which of several competing

       inferences, suggested by the evidence in the record, should be preferred, is

       a matter in which an appellate judge is at least equally qualified, by reason

       and experience, to venture an opinion. Therefore, although this distinction

       is not set forth in Thompkins, supra, we conclude that a decision by a
                                                                                            9

        factfinder as to which testimony to credit, and to what extent, is a decision

        that is entitled to greater deference than the decision as to how much logical

        force to assign an inference suggested by that evidence – in short, how

        persuasive it is. State v. Pierre, 2d Dist. Montgomery No. 18443, 2001 WL

        220239 (March 2, 2001).

        {¶ 26} During the trial, the key issue before the jury was whether Rhines was

driving the stolen vehicle which caused the accident and resulted in the death of Dwayne

Bullock, as well as serious injuries to three other people in his vehicle. In this regard, the

State principally relied on the testimony of David Humphrey, a limousine driver who was

present in the parking lot of a McDonalds Restaurant directly across from where the

collision occurred. Humphrey testified that immediately prior to the collision, he observed

a Chevrolet Malibu with two individuals in the front seat speeding down Washington Street

at approximately sixty-five to seventy miles per hour. Humphrey stated that the Chevrolet

ran a red light and then crashed into a white minivan and then hit the Pontiac driven by

Dwayne Bullock which brought all of the vehicles involved in the collision to a stop. In the

initial moments after the crash, Humphrey stated that he observed a black male wearing dark

pants, a brown jacket, and a knit hat climb out of the driver’s side of the vehicle and begin

walking towards the back of the BP gas station on the opposite side of the street. Humphrey

testified that the man, later identified as Rhines, was walking quickly but with a pronounced

limp.

        {¶ 27} Humphrey testified that he got back in his limousine and tried to follow the

man fleeing the scene of the collision. Humphrey called 911 to report the collision, and the
                                                                                             10

fleeing driver. Humphrey gave the 911 operator a description of the man based on the

clothes he was wearing. The operator told Humphrey to go back to the scene of the

collision and to stop following the suspect. Humphrey testified that he followed the man

for a moment longer, but eventually returned to scene of the collision and informed the

emergency personnel there of what he had witnessed.          Upon returning to the scene,

Humphrey observed a black male, later identified as Runyon Yarborough, lying next to the

passenger side of the Chevrolet being attended to by emergency personnel.

       {¶ 28} After observing Rhines walking/limping northbound on Main Street and

taking him into custody, Sgt. Ponichtera arrived at the scene of the collision. Based on his

clothing, Humphrey identified Rhines as the man he observed climb out of the driver’s side

of the Chevrolet and leave the scene by walking northbound on Main Street. We note that

although Rhines’ DNA was not found in the Chevrolet, he was observed by Humphrey to be

the first individual to climb out of the vehicle on the driver’s side within seconds of the

collision. Humphrey’s testimony clearly supports the State’s theory that Rhines was the

driver of the stolen Chevrolet which caused the collision that took Dwayne Bullock’s life.

       {¶ 29} It is undisputed that Yarborough’s DNA was found on the driver’s side

airbag. Nevertheless, the State presented evidence that the passenger side door would not

open, thus requiring Yarborough to climb out the driver’s side door and providing an

explanation as to how his DNA was deposited on the deployed airbag. Mary J. Cicco, a

forensic expert from the Miami Valley Regional Crime Lab, testified that the absence of

Rhines’ DNA from the deployed airbag on the driver’s side did not preclude him from being

the driver of the vehicle, noting that no DNA was deposited on the airbag deployed on the
                                                                                            11

passenger side.

       {¶ 30}     Upon review, we conclude that Rhines’ conviction is not against the

manifest weight of the evidence. The credibility of the witnesses and the weight to be given

their testimony were matters for the jury to resolve. Rhines presented no evidence at trial.

Instead, Rhines attempted to undermine the State’s case by discrediting the testimony of the

various individuals who witnessed all or part of the collision and its aftermath. Specifically,

Rhines attempted to establish that Yarborough was the driver of Chevrolet. We cannot say

that the jury lost its way simply because it rejected Rhines’ contention that Yarborough was

the driver.   Humphrey observed the collision and positively identified Rhines as the

individual he saw climb out the vehicle on the driver’s side and flee the scene.

       {¶ 31} We note that witness Michael Davis testified that he did not see the collision

occur nor did he arrive at the scene until three to five minutes after the crash. Upon arriving

at the scene, however, he observed a single black male crawl out of the driver’s side of the

Chevrolet, walk to the passenger side of the vehicle, and lay down on the ground. When

Humphrey returned to the scene shortly after following Rhines, he observed Yarborough

laying on the ground on the passenger side of the vehicle. As stated previously, Humphrey

testified that Rhines climbed out of the driver’s side of the vehicle within seconds after the

crash occurred, well before Davis arrived at the scene and observed Yarborough climb out of

the vehicle. This testimony supports the State’s theory that Rhines was driving the vehicle

when the collision occurred because he climbed out of the driver’s side of the Chevrolet

first. Having reviewed the entire record, we cannot clearly find that the evidence weighs

heavily against a conviction, or that a manifest miscarriage of justice has occurred.
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       {¶ 32} Rhines’ third assignment of error is overruled.

       {¶ 33} Rhines’ fourth assignment of error is as follows:

       {¶ 34} “DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

TRIAL COUNSEL.”

       {¶ 35} In his fourth assignment, Rhines argues that he received ineffective

assistance for the following reasons: 1) defense counsel did not call any witnesses for

Rhines’ case-in-chief, namely an accident re-constructionist; 2) defense counsel failed to

object to juror note-taking at the beginning of the trial; and 3) defense counsel failed to ask

the trial court to provide a limiting instruction regarding juror note-taking.

       {¶ 36} “We review the alleged instances of ineffective assistance of trial counsel

under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley

(1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an

objective standard of reasonableness and that his errors were serious enough to create a

reasonable probability that, but for the errors, the result of the trial would have been

different. Id. Hindsight is not permitted to distort the assessment of what was reasonable

in light of counsel’s perspective at the time, and a debatable decision concerning trial

strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal

citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
                                                                                                13

       {¶ 37} An appellant is not deprived of effective assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown, 38

Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective assistance

of counsel is not whether counsel pursued every possible defense; the test is whether the

defense chosen was objectively reasonable. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052. A reviewing court may not second-guess decisions of counsel which can be

considered matters of trial strategy. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128

(1985). Debatable strategic and tactical decisions may not form the basis of a claim for

ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been

available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).

       {¶ 38} “The failure to call an available witness whose testimony could acquit the

defendant can constitute ineffective assistance of counsel. Nevertheless, there is a

presumption that any challenged action on the part of defense counsel ‘might be considered

sound trial strategy.’ Decisions regarding the calling of witnesses will often fall within the

range of acceptably sound trial strategy.” State v. Johnson, 2d Dist. Montgomery No. 16803,

1998 WL 453768 (Aug. 7, 1998), (citations omitted).             The Ohio Supreme Court has

recognized that whether to call an expert is a matter of trial strategy, and “the failure to call

an expert and instead rely on cross-examination does not constitute ineffective assistance of

counsel.” State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993); see also State v.

Thompson, 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407 (1987).

       {¶ 39} After a thorough review of the record, we conclude that Rhines has failed to

establish that he was prejudiced by his counsel’s failure to call any expert witnesses and/or
                                                                                               14

an accident re-constructionist in order to challenge the State’s case. As to the DNA expert

testimony, the State’s forensic expert, Mary Cicco, testified that her tests would establish

only that DNA was or was not present on an item, but not the manner in which it was

deposited in a specific area. Cicco testified that she discovered the DNA of Yarborough on

the driver’s side airbag, as well as the DNA of the stolen vehicle’s owner’s son, Radwan

Jaber. Cicco testified that Rhines’ DNA, however, was not found anywhere in the vehicle.

The absence of Rhines’ DNA does not establish who was operating the vehicle. Cicco

testified that if the airbag deployed and hit Rhines in an area of his body where he was fully

clothed, then she would not expect to find a DNA transfer. Defense counsel did aptly elicit

testimony from Cicco that Rhines’ DNA was not found anywhere in the vehicle, while

Yarborough’s DNA was found on the driver’s side airbag, thus permitting an inference that

Rhines was not in the vehicle when it crashed or was not driving it. Such testimony was

arguably helpful to the defense, and defense counsel was not deficient for failing to call its

own expert in this regard.

       {¶ 40} Similarly, defense counsel was not ineffective for failing to call an accident

re-constructionist to testify. Initially, we note that the State presented the testimony of

eyewitnesses who observed the crash as it occurred, namely Eric Suttman and David

Humphrey. The witnesses were able to provide the jury with a detailed description of the

crash itself and the individuals involved. Significantly, an accident re-constructionist would

be unable to offer any testimony going to the heart of the case; that is, who, in fact, was

driving the vehicle when the deadly collision occurred. Thus, defense counsel was not

ineffective for failing to retain the services of an accident re-constructionist to testify during
                                                                                             15

trial.

         {¶ 41} Rhines also argues that it was deficient for his counsel to fail to request a

continuance in order to retain an expert DNA witness and an accident re-constructionist.

We have already concluded that defense counsel was not ineffective for failing to call his

own DNA expert and accident re-constructionist. Furthermore, we cannot find that counsel

was ineffective for failing to request a continuance in order to retain his own expert

testimony. We note that the record is not clear as to when Rhines’ counsel learned about

the DNA testimony, but nevertheless, the absence of Rhines’ DNA was arguably

exculpatory, not incriminating. Thus, any decision to proceed to trial was a matter of trial

strategy. The record establishes that defense counsel vigorously cross-examined all of the

State’s witnesses, and Rhines fails to demonstrate how any additional preparation time and

expert consultation would have changed the outcome of the case.

         {¶ 42} Lastly, Rhines asserts that his trial counsel was ineffective for failing to

object to the trial court’s decision to permit the jurors to take notes during the trial. We

have already found, however, that the trial court did not err when it permitted the jury to take

notes. Moreover, contrary to Rhines’ repeated assertion, the trial court did, in fact, provide

the jury with a limiting instruction regarding the jurors’ decision to take and use notes during

trial and deliberations. Rhines has failed to establish that his counsel’s performance fell

below an objective standard of reasonableness.

         {¶ 43} Rhines’       fourth      assignment       of      error      is     overruled.



         {¶ 44} Rhines’ fifth assignment of error is as follows:
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       {¶ 45} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN THE

COURT PREVENTED DEFENDANT FROM NAMING THE WITNESS, RUNYON

YARBOROUGH’S PRIOR CONVICTION FOR VEHICULAR ASSAULT.”

       {¶ 46} In his fifth assignment, Rhines contends that the trial court abused its

discretion when it limited defense counsel’s impeachment of Yarborough pursuant to Evid.

R. 609(A), by refusing to permit defense counsel to elicit from Yarborough the fact of his

prior conviction for vehicular assault. The trial court ruled that the “evidence [was] being

used by *** the defense to show that [Yarborough’s] perhaps guilty; he’s the perpetrator

because he’s got a prior similar conviction.” Alternatively, the trial court permitted defense

counsel to refer to the prior vehicular assault conviction as simply, an “assault.”

       {¶ 47} With respect to the admission or exclusion of evidence, the trial court has

broad discretion and its decision in such matters will not be disturbed by a reviewing court

absent an abuse of discretion that has caused material prejudice. State v. Noling, 98 Ohio

St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88.

       {¶ 48}     As the Supreme Court of Ohio has determined:

                “Abuse of discretion” has been defined as a attitude that is unreasonable,

                arbitrary or unconscionable. It is to be expected that most instances of abuse

                of discretion will result in decisions that are simply unreasonable, rather than

                decisions that are unconscionable or arbitrary.

                A decision is unreasonable if there is no sound reasoning process that would

                support that decision. It is not enough that the reviewing court, were it to

                decide the issue de novo, would not have found that reasoning process to be
                                                                                         17

              persuasive, perhaps in view of countervailing reasoning processes that would

              support a contrary result. AAAA Enterprises, Inc. v. River Place Community

              Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶ 49} Evid. R. 609(A)(1) states as follows:

              (A) General rule

              For the purpose of attacking the credibility of a witness:

              (1) subject to Evid. R. 403, evidence that a witness other than the

              accused has been convicted of a crime is admissible if the crime

              was punishable by death or imprisonment in excess of one

              year pursuant to the law under which the witness was convicted.

       {¶ 50} Evid.R. 403(A) provides:

              Exclusion mandatory.      Although relevant, evidence is not

              admissible if its probative value is substantially outweighed by

              the danger of unfair prejudice, of confusion of the issues, or of

              misleading the jury.

       {¶ 51} In the instant case, Rhines argues that the trial court should have permitted

him to introduce evidence of Yarborough’s prior conviction for vehicular assault. Rhines

asserts that he “simply wanted to impeach [Yarborough]’s credibility for truthfulness by

introducing the fact that [he] has a prior conviction for vehicular assault,” the exact same

crime for which Rhines had been charged. As stated previously, the central issue in this

case was who was driving the vehicle when it crashed.

       {¶ 52} We conclude that the trial court erred when it reclassified Yarborough’s
                                                                                                18

vehicular assault conviction as simple         “assault”.    Any danger that the jury would

misconstrue the prior conviction as substantive evidence that Yarborough was the driver of

the Chevrolet Malibu was de minimis as Yarborough was not on trial nor under indictment.

Thus, the “prejudicial impact” of this evidence was limited. There is no justification for

calling the prior conviction something different that what it is. Although the new labeling

of Yarborough’s prior conviction was an abuse of discretion, we cannot find that it

constituted material prejudice to Rhines.

       {¶ 53} Rhines’ fifth assignment of error is overruled.

       {¶ 54} Rhines sixth and final assignment of error is as follows:

       {¶ 55} “THE         STATE’S     BLATANT         AND     CONTINUOUS          DISCOVERY

VIOLATIONS CONSTITUTED PROSECUTORIAL MISCONDUCT AND DENIED

DEFENDANT A FAIR TRIAL.”

       {¶ 56} In his final assignment, Rhines argues that the State committed misconduct

when it failed to disclose the following evidence prior to trial, to wit: 1) evidence that the

DNA of the son, Radwan Jaber, of the owner of the stolen vehicle was found inside the

Chevrolet; 2) the second report filed by Officer Derric D. McDonald indicating that Rhines,

not Yarborough, was the driver of the stolen Chevrolet; and 3) the second statement made to

police by witness Davis.

       {¶ 57}     In analyzing claims of prosecutorial misconduct, “the touchstone of

analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Smith v. Phillips,

455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). Where it is clear beyond a

reasonable doubt that a jury would have found the defendant guilty even absent the alleged
                                                                                               19

misconduct, the defendant has not been prejudiced and his conviction will not be reversed.

See State v. Loza, 71 Ohio St.3d 61, 78, 1994-Ohio-409, 641 N.E.2d 1082. In reviewing

allegations of prosecutorial misconduct, we review the alleged wrongful conduct in the

context of the entire trial. Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d

144 (1986).

       {¶ 58} Initially, we note that defense counsel admitted that he and the attorneys for

the State had a conference prior to trial during which defense counsel was permitted to

inspect all of the State’s discovery “page by page.” Regarding the information in Cicco’s

report disclosing the presence of the Radwan Jaber’s DNA in the vehicle, we find that such

evidence was not probative of who was driving the Chevrolet on the night of the crash.

Jaber was the owner’s son, and it is no surprise that his DNA was present in the vehicle.

Additionally, there is no evidence that Jaber was in the vehicle when the crash occurred.

Thus, we find that the State’s alleged failure to disclose the presence of Jaber’s DNA in the

stolen vehicle did not constitute misconduct and had no prejudicial effect on Rhines’ trial.

       {¶ 59} With respect to Officer McDonald’s second report, defense counsel

acknowledged learning of the second report prior to trial. Although defense counsel argued

that the State was rather dilatory in disclosing the second report, he acknowledged that the

late receipt of the document did not necessitate a continuance to allow for additional trial

preparation.   Further, defense counsel was able to cross-examine Officer McDonald

extensively regarding the second report. Substantively, the reports were the same except as

to Officer McDonald’s conclusion regarding who was driving the vehicle.                Officer

McDonald’s explanation for the discrepancy in conclusions was based on DNA analysis
                                                                                               20

versus witness accounts.

        {¶ 60} Lastly, Rhines argues that the State committed a discovery violation when it

failed to disclose to defense counsel a second statement made by witness Davis which

purportedly contradicted information he provided to police in his first statement. We note

that the State denied that it failed to provide defense counsel with Davis’ second statement

prior to trial. Even if the State did, in fact, fail to turn over the second statement, the record

establishes that this was due to a miscommunication between the parties, and not any

malicious intent on the part of the State. Furthermore, at the pre-trial conference where

defense counsel was permitted to inspect the State’s discovery, the prosecutor asked defense

counsel if he was in possession of Davis’ statements, and defense counsel stated that he was.

 The State informed the trial court that it assumed that defense counsel was referring to both

of Davis’ statements. Defense counsel stated that he agreed with the State’s interpretation

of their earlier conversation.     Moreover, it appears that defense counsel was able to

cross-examine Davis at length regarding any discrepancies between his first and second

statements. Upon review, it is clear that Rhines was not prejudiced by the State’s alleged

failure to provide Davis’ second statement to police regarding the accident.

        {¶ 61} Rhines’ sixth and final assignment of error is overruled.

        {¶ 62} All of Rhines’ assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                          ..........

FAIN, J., concurring:

        {¶ 63} I concur fully in Judge Donovan’s opinion for the court. I write separately
                                                                                          21

merely to clarify my reason for concluding that the trial court’s error in re-naming the

witness Yarborough’s Vehicular Assault felony conviction as a conviction for Assault was

harmless.

       {¶ 64} Rhines conceded in oral argument that the only legitimate purpose for

introducing Yarborough’s conviction for Vehicular Assault was to impeach his testimony,

not to support Rhines’s contention that Yarborough, not Rhines, was the driver of the

vehicle in this case. Unless a prior felony conviction is for a crime of moral turpitude,

involving dishonesty, the name of the offense does not establish any greater likelihood that

the witness is a dishonest person, beyond the mere fact that the witness has committed a

felony in the past. Here, in addition to the mis-named “Assault” conviction, Rhines was

able to establish that Yarborough had been convicted in the past of multiple felonies.

Therefore, the misnomer of Yarborough’s Vehicular Assault conviction was not likely to

have any impact on the jury’s assessment of Yarborough’s credibility. In other words, that

one of Yarborough’s multiple felony convictions was Vehicular Assault, not Assault, would

not have done any greater damage to Yarborough’s credibility in the eyes of the jury.

Therefore, I agree that the error was harmless.

                                         ..........

HALL, J., concurring:

       {¶ 65} I concur with the analysis in the opinion for the court, and the concurring

opinion, which leads to affirming the judgment. But I differ somewhat with respect to

whether the trial court erred by restricting impeachment of a witness by limiting the name of

that witness’s prior conviction. In my view, the trial court did not abuse its discretion by
                                                                                                                                  22

finding that the probative value of that Evid.R. 609(A)(1) evidence was, subject to Evid. R.

403, substantially outweighed by the danger of unfair prejudice. I agree that reclassifying the

offense of “vehicular assault” as an “assault” rather than simply referring to it as an

“unspecified felony,” could be incorrect. However, once the trial court ruled that the term

“vehicular assault” would not be admissible, the name to call the offense, i.e. “assault,” was

agreed to by counsel. (T. 481). Accordingly, it was not error. Moreover, I agree that any

perceived error about the limitation is undoubtedly harmless.

         {¶ 66} Impeachment of a witness by a prior felony conviction, as permitted by

Evid.R. 609(A)(1), is specifically made “subject to Evid. R. 403[.]" Id. Here, the defendant

was charged with aggravated vehicular homicide and three counts of aggravated vehicular

assault. Whether the defendant was the driver of the speeding stolen vehicle was a key issue

in the case. Runyon Yarborough, who was also seen getting out of the driver’s side of the

car, testified that Antwan Rhines had been the driver. Normally, evidence of a prior

conviction is limited to “the name of the crime, the time and place of conviction and the

punishment imposed.” State v. Amburgey, 33 Ohio St.3d 115, 515 N.E.2d 925 (1987),

syllabus. But here, the defense argued that Runyon Yarborough had actually been the driver

of the car.1 (See e.g. T. 976) There was substantial risk that the jury, upon hearing that

Yarborough had a prior conviction for vehicular assault, would conflate that testimony,

which should be used only as it affects the witness’s credibility, as substantive evidence of

Yarborough’s responsibility. Yarborough had convictions for multiple other felonies (T.


             1
               The evidence in the record of Yarborough’s conviction for a vehicular assault was insufficient to independently qualify
   as admissible 404(B) evidence.
                                                                                          23

882-883), so the evidentiary value of this additional one was minimal. “The decision

whether or not to admit evidence under Evid. R. 609 is left to the sound discretion of the

trial court * * *.”   State v. Lawson, Montgomery No. 23456, 2010–Ohio–3114, ¶ 17. Under

the circumstances, I cannot say that the trial court abused its discretion. Perhaps it would

have been better if the parties had agreed to refer to that offense simply as another “felony

conviction,” but their agreement was not error in light of the trial court’s ruling.

        {¶ 67} In the final analysis, any impact this additional felony could have had on the

issue of Yarborough’s credibility is undoubtedly harmless because the jury heard of his other

convictions in 2009 for four counts of having weapons under disability, in 2004 for

possession of cocaine, and in 2004 for improperly discharging a firearm at or into a

habitation.

                                          ..........



Copies mailed to:

R. Lynn Nothstine
Daniel F. Getty
Hon. Gregory F. Singer
