         [Cite as State v. Hamm, 2017-Ohio-5595.]
                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO


STATE OF OHIO,                                      :   APPEAL NOS. C-160230
                                                                     C-160231
   Plaintiff-Appellee,                              :   TRIAL NOS. B-1405019
                                                                   B-1503840
   vs.                                              :

QURAN HAMM,                                         :      O P I N I O N.

   Defendant-Appellant.                             :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: June 30, 2017


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John D. Hill, Jr., for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.
       {¶1}    There were two indictments in this case.    The first, numbered B-

1405019, charged defendant-appellant Quran Hamm with trafficking in marijuana,

three counts of having a weapon while under a disability (“WUD”), and two counts of

felonious assault of a peace officer, each with three accompanying firearm

specifications. The second indictment, numbered B-1503840, charged Hamm with

felonious assault of a peace officer. Over Hamm’s objection, the trial court granted

the state’s motion to consolidate the indictments for trial.     In the indictment

numbered B-1405019, Hamm pleaded guilty to a reduced trafficking charge, and

elected to proceed with a jury trial on the felonious-assault charges. He tried the

WUD charges to the bench on the evidence presented in the jury trial. Hamm chose

to try the felonious-assault charge in the B-1503840 indictment to a jury, as well.

Following trial, a jury found Hamm guilty of two of the three felonious-assault

charges, with gun specifications. And the trial court found him guilty of the WUD

charges. Hamm was sentenced to an aggregate term of 29 years’ incarceration. This

appeal followed.

              Pretrial Ineffective-Assistance-of-Counsel Claim

       {¶2}    Prior to trial, Hamm was represented by attorney M.J. Donovan. In

July 2015, the court allowed Donovan to withdraw from representation “for good

cause shown.” Donovan did not file a motion to withdraw, nor was there a hearing

concerning the reasons why Donovan wished to withdraw. The court subsequently

appointed attorneys Norman Aubin and Perry Ancona. During a hearing on pretrial

motions, Aubin and Ancona argued that a witness on the state’s witness list,

jailhouse-informant Christopher Hill, should be barred from testifying based on

Donovan’s ineffective assistance to Hamm. During the pretrial hearing, the assistant

prosecuting attorney, David McIlwain, told the court that Donovan had contacted

him before she had withdrawn from Hamm’s case and had told McIlwain that Hill

wanted “to cooperate” against Hamm. According to McIlwain, Donovan said that



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                      OHIO FIRST DISTRICT COURT OF APPEALS


McIlwain could talk to Hill. Aubin told the court that Donovan had “sent” Hill to the

prosecutor’s office to talk to an investigator on June 19, 2015. Based on these

allegations, the defense claimed that Donovan had been ineffective and, as a remedy

for Donovan’s ineffectiveness, asked the court to exclude Hill as a witness. The

defense also argued that Hill should be barred from testifying because his testimony

would violate Hamm’s due-process right to a fair trial.

       {¶3}   The trial court determined that while there may have been problems

with Donovan’s representation of Hamm, the remedy was not to exclude Hill’s

testimony. It therefore denied Hamm’s motion.

                          The B-1405019 Indictment

       {¶4}   The case proceeded to trial. In regard to the felonious-assault charges

in the indictment numbered B-1405019, police officer Mark Bode testified that he

had been on routine patrol in the middle of the night with police officer Thomas

Weigand when he noticed a car with no license plate and a potential tinted-window

violation. The officers pulled the car over. When the car stopped, a passenger

jumped out and began running in the direction of Bode and Weigand’s police cruiser.

Bode had just exited from his cruiser when the runner fired a shot and continued

running. Weigand was still in the cruiser when he heard gunfire. Neither officer

could identify the runner. Weigand ordered the driver out of the car. The driver was

Donnell Woods. Weigand testified that Woods was sweaty, nervous, and shaking.

Weigand also testified that he could see Woods’s heart beating through his shirt. He

further testified that, after he had ordered Woods out of the car, Woods volunteered,

“I didn’t know that * * * [motherf**ker] was going to shoot at you.”

       {¶5}   Bode later identified Hamm as the runner based on evidence

recovered from the scene. Police arrested Hamm. Hamm was held in the Hamilton

County Justice Center (“HCJC”) awaiting trial.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


                           The B-1503840 Indictment

       {¶6}   The charge in the indictment numbered B-1503840 arose from events

that took place while Hamm was being held in the HCJC on the B-1405019 charges.

Deputy sheriff David Smucker testified that he had been delivering lunch to Hamm

in Hamm’s cell, and that he had had to open Hamm’s cell door to hand Hamm his

lunch. After he opened the door, Smucker “forcibly felt” himself fall backwards.

Smucker hit his head on a nearby railing. He sustained a concussion, a lacerated ear,

and a bruised arm. Smucker testified that he did not see Hamm strike him, but that

following his fall, he noticed a mark under his left eye and believed that Hamm had

punched him in the face. Hamm was the only inmate in the vicinity at the time that

Smucker fell. Deputy sheriff John Brady, who had been working nearby, testified

that he witnessed Hamm punch Smucker in the face. The defense’s theory of the

case was that Smucker had fallen on his own accord as a result of medication

Smucker had been taking.

       {¶7}   Over defense counsel’s objection, the court allowed the state to

introduce “other acts” evidence of two other incidents involving Hamm at the HCJC.

As to the first incident, corrections officer Peter Billey testified that Hamm had tried

to elbow him, and that he had called officer Billey a “white devil, cracker and honky.”

Billey further testified that Hamm had told him “crackers crumble.” The other

incident involved Brady. Brady had conducted a random search of Hamm’s cell.

During the search, Brady heard Hamm state, “I * * * [f**kin’] hate all white people

with authority.” The state argued that these acts tended to show Hamm’s motive and

intent to commit the crime charged. The trial court allowed the evidence in, and

instructed the jury that the “other acts” could only be considered in regard to the B-

1503840 charge. The jury was also instructed that the “other acts” could not be

considered to prove Hamm’s character or that he acted in conformity with that

character.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


               Jailhouse Informant and “Threat” Testimony

       {¶8}   Two former HCJC inmates, Christopher Hill and Kevan Williamson,

testified against Hamm at trial. Both had been incarcerated with Hamm.

       {¶9}   According to Hill, Hamm had admitted to running from police late at

night after being pulled over and had admitted to firing a gun at them. Hill testified

that Hamm told Hill that he had had a gun, heroin, and marijuana, and that he had

run and had fired a gun because he did not want police to find any of it. On cross-

examination, defense counsel asked Hill about his dealings with attorney Donovan,

who had represented both Hill and Hamm at one point. Hill testified that he had

called Donovan and told her that he had information about Hamm, and that he

wanted to cooperate with the prosecutor’s office. When he was asked how Donovan

responded to this request, Hill testified that Donovan “stopped me from right [sic]

there,” and would not discuss the matter further with him. Hill did not know if

Donovan had called the prosecutor’s office on his behalf.       Hill, who had been

interviewed by Detective Bryan Pitchford, could not say for certain if he had been

interviewed on June 19, 2015.

       {¶10} Williamson testified that Hamm had admitted to him that he had fired
a gun at police officers while running away from them, and had also admitted to

hitting Smucker.

       {¶11} Hill and Williamson both testified that Hamm had threatened each of
them about testifying.

       {¶12} Detective Bryan Pitchford testified that after receiving complaints
about Hamm’s threats against Hill and Williamson, he had inspected Hamm’s cell at

the HCJC. Pitchford observed writing on the ceiling that included threats to kill

Williamson and Hill for being “snitches.” The court allowed photographs of the

writing to be admitted into evidence.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶13} On cross-examination, Pitchford, who had interviewed Hill before
trial, was asked how he knew that Hill had had incriminating information concerning

Hamm. Pitchford testified that “an attorney” had contacted his office with this

information.

                              Other-Acts Evidence

       {¶14} In his first assignment of error, Hamm contends that the trial court
erred by allowing “other acts” evidence, and by allowing evidence that Hamm had

threatened the jailhouse informants about testifying.

       {¶15} Evid.R. 404(B) and R.C. 2945.59 codify the common law with respect
to evidence of other acts of wrongdoing, and are construed against admissibility.

State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994), citing State v. Burson,

38 Ohio St.2d 157, 311 N.E.2d 526 (1974), and State v. Hector, 19 Ohio St.2d 167,

174-175, 249 N.E.2d 912 (1969). In pertinent part, R.C. 2945.59 allows the state to

introduce evidence of a defendant’s motive or intent where the evidence is “material”

to the case. Evid.R. 404(B) provides that evidence of other acts “is not admissible to

prove the character of a person in order to show action in conformity therewith.” But

the evidence may be admissible “for other purposes, such as proof of motive,

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

accident.” Evid.R. 404(B).

       {¶16} A trial court should conduct a three-step analysis to determine the
admissibility of “other acts” evidence. State v. Williams, 134 Ohio St.3d 521, 2012-

Ohio-5695, 983 N.E.2d 1278, ¶ 19. First, a court must “consider whether the other

acts evidence is relevant to making any fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence.” Id. at ¶ 20, citing Evid.R. 401. Second, a court must “consider whether

evidence of the other crimes, wrongs, or acts is presented to prove the character of

the accused in order to show activity in conformity therewith or whether the other




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                      OHIO FIRST DISTRICT COURT OF APPEALS


acts evidence is presented for a legitimate purpose, such as those stated in Evid.R.

404(B).” Id. Finally, the court must “consider whether the probative value of the

other acts evidence is substantially outweighed by the danger of unfair prejudice.”

Id., citing Evid.R. 403. We review the trial court’s decision to allow “other acts” into

evidence under an abuse-of-discretion standard. State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.

       {¶17} Hamm first argues that the other acts were “completely immaterial” to
prove any fact in the state’s case. This argument is without merit. The state’s theory

of the case was that Hamm had a motivation to hit Smucker—Hamm disliked

authority figures, and especially did not like Caucasian authority figures. In opening

statements, the defense contended that Smucker had not been hit, but had fallen and

that his fall may have been caused by medication that Smucker had been taking. The

“other acts” evidence tended to show that Hamm had wanted and intended to hit

Smucker, and not that Smucker had fallen on his own accord. See Williams at ¶ 22

(holding evidence of the “sexual grooming” of a 16-year-old boy to be admissible in a

prosecution for sexual crimes against a 14-year-old boy because the evidence would

corroborate some of the state’s evidence and would rebut the defense’s theory that

the victim had falsified the charges).

       {¶18} Moreover, the elbowing and name-calling incidents were presented for
a legitimate purpose under Evid.R. 404(B). “Motive” and “intent” are both permitted

uses of other-acts evidence under Evid.R. 404(B) and R.C. 2945.59.             Hamm’s

apparent distain for Caucasian guards at the HCJC helped to explain why Hamm hit

Smucker—a Caucasian guard at HCJC—and also tended to show that it was his intent

to hit Smucker.

       {¶19} Finally, Hamm argues that the evidence should have been excluded
because it was unfairly prejudicial. He argues that the jury was unable to separate

the “other acts” evidence presented in the Smucker-assault case from the evidence in




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                      OHIO FIRST DISTRICT COURT OF APPEALS


the B-1405019 case. Here, the jury was properly instructed that the “other acts”

could only be considered in connection with the Smucker assault. The trial court

also properly instructed the jury that the evidence could not be considered to prove

Hamm’s character or that he acted in conformity with that character in committing

the crime charged. A jury is presumed to follow the trial court’s instructions. State

v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995). We therefore hold that the

trial court did not abuse its discretion in admitting evidence of these incidents.

       {¶20} Hamm next argues that evidence of Hamm’s threats towards Hill and
Williamson was improperly admitted “other acts” evidence. This argument is not

well taken. Evidence of threats or intimidation of witnesses reflects a consciousness

of guilt. State v. Richey, 64 Ohio St.3d 353, 357, 595 N.E.2d 915 (1992). The

evidence was admissible as an admission by conduct. State v. Parnell, 10th Dist.

Franklin No. 11AP-257, 2011-Ohio-6564, ¶ 30-35; State v. Soke, 105 Ohio App.3d

226, 250, 663 N.E.2d 986 (8th Dist.1995).

       {¶21} Hamm’s first assignment of error is overruled.
                                        Joinder

       {¶22} In his second assignment of error, Hamm contends that the trial court
abused its discretion by joining his indictments for trial.

       {¶23} The law favors joinder of multiple offenses against the same defendant
in a single trial. State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981). A

defendant claiming error in the trial court’s refusal to allow separate trials of

multiple charges has the burden of affirmatively showing that his rights were

prejudiced. Torres at syllabus. Joinder is not prejudicial if the evidence relevant to

the offenses (1) would be admissible in the trial of the other offenses as other-acts

evidence under Evid.R. 404(B) or (2) is simple and direct. State v. Kennedy, 2013-

Ohio-4221, 998 N.E.3d 1189, ¶ 32, (1st Dist.), citing State v. Lott, 51 Ohio St.3d 160,

163, 555 N.E.2d 293 (1990).




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                       OHIO FIRST DISTRICT COURT OF APPEALS


       {¶24} Here the evidence was simple and direct.             The offenses involved

different victims, and the acts committed against the officers in the first indictment

were separate in time and location from those in the second indictment. The state’s

presentation of the evidence with respect to each of the charges was direct and

uncomplicated, thus enabling the jury to separate the proof for each offense. And the

trial court instructed the jury to consider each count separately. We therefore find

no abuse of discretion in the trial court’s decision to join the indictments for trial.

       {¶25} Hamm’s second assignment of error is overruled.
                                        Hearsay

       {¶26} In his third assignment of error, Hamm contends that the trial court
erred when it allowed Weigand to testify that Woods said, “I didn’t know that * * *

[motherf**ker] was going to shoot at you.” Hamm claims that the statement was

inadmissible hearsay. This argument has no merit.

       {¶27} Hamm did not object to Woods’s statement on the basis that it was
hearsay. He has therefore forfeited all but plain error on appeal. Crim.R. 52(B);

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22-23.

Under the plain-error doctrine, the appellant must show an “error,” meaning a

deviation from a legal rule, and the error must constitute an obvious defect in the

trial court’s proceedings. Rogers at ¶ 22. Here there was no error, and accordingly

there was no plain error.

       {¶28} “The admission or exclusion of relevant evidence lies within the sound
discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343

(1987), paragraph two of the syllabus. The trial court in this case did not abuse its

discretion because Woods’s statement was properly admitted as an excited utterance.

See Evid.R. 803(2). In State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984

N.E.2d 948, ¶ 166, quoting Potter v. Baker, 162 Ohio St. 488, 124 N.E.2d 140 (1955),

paragraph two of the syllabus, the Ohio Supreme Court held that




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                       OHIO FIRST DISTRICT COURT OF APPEALS


       A four-part test is applied to determine the admissibility of statements

       as an excited utterance:

              (a) that there was some occurrence startling enough to produce

       a nervous excitement in the declarant, which was sufficient to still his

       reflective faculties and thereby make his statements and declarations

       the unreflective and sincere expression of his actual impressions and

       beliefs, and thus render his statement of declaration spontaneous and

       unreflective,

              (b) that the statement or declaration, even if not strictly

       contemporaneous with its exciting cause, was made before there had

       been time for such nervous excitement to lose a domination over his

       reflective faculties so that such domination continued to remain

       sufficient to make his statements and declarations the unreflective and

       sincere expression of his actual impressions and beliefs,

              (c) that the statement or declaration related to such startling

       occurrence or the circumstances of such starling occurrence, and

              (d) that the declarant had an opportunity to observe personally

       the matters asserted in his statement or declaration.

(Emphasis sic.)

       {¶29} Here, Weigand testified that Woods made the statement shortly after
being stopped by police and within a minute or two of hearing a gunshot. Weigand

testified that Woods appeared nervous, was sweating and shaking, and that Woods’s

heartbeat was visible through his shirt.          The statement, “I didn’t know

that * * * [motherf**ker] was going to shoot at you,” related to the startling event,

i.e., the shooting. Woods was present in the vehicle from which Hamm had just

exited when the shooting occurred. Hence, the trial court did not abuse its discretion




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                     OHIO FIRST DISTRICT COURT OF APPEALS


in allowing this statement into evidence. There was no error, and no plain error.

Hamm’s third assignment of error is overruled.

                             Confrontation Clause

       {¶30} In his fourth assignment of error, Hamm claims that admitting
Woods’s statement violated his Sixth Amendment right to confront the witnesses

against him. This argument is also not well taken.

       {¶31} Hamm did not raise a confrontation-clause objection in the trial court.
We therefore are limited to review for plain error. Crim.R. 52(B); Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22-23.

       {¶32} The Sixth Amendment to the United States Constitution provides, in
pertinent part, that: “In all criminal prosecutions, the accused shall enjoy the

right * * * to be confronted with the witnesses against him.”     The Confrontation

Clause bars the “ ‘admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had a prior

opportunity for cross-examination.’ ” State v. Lewis, 1st Dist. Hamilton Nos. C-

050989 and C-060010, 2007-Ohio-1485, ¶ 29, quoting Crawford v. Washington,

541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).           A “testimonial

statement” is one that is “made ‘under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial.’ ” Lewis at ¶ 31, quoting State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482,

855 N.E.2d 834, paragraph one of the syllabus, quoting Crawford at 52.           At a

minimum, the term “testimonial” applies “to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to police interrogations.”

Crawford at 68. The Crawford court noted these practices bore “the closest kinship

to the abuses at which the Confrontation Clause was directed.” Id.

       {¶33} Here, Woods’s “excited utterance” was not testimonial in nature. It
was not in response to police questioning, nor was it offered during any type of




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                      OHIO FIRST DISTRICT COURT OF APPEALS


formal proceeding or questioning. Rather, by definition, it was volunteered under

circumstances where there was no time for the speaker to reflect and falsify his or her

account of an event. Therefore, this was not the type of statement that implicates the

Confrontation Clause. See State v. Byrd, 160 Ohio App.3d 538, 2005-Ohio-1902,

828 N.E.2d 133, ¶ 17 (2d Dist.), citing State v. Williams, 2d Dist. Montgomery No.

20368, 2005-Ohio-213, ¶ 20 (an excited utterance is generally nontestimonial in

nature).

       {¶34} Therefore, there was no plain error. Hamm’s fourth assignment of
error is overruled.

                      Ineffective Assistance of Counsel

       {¶35} In his fifth assignment of error, Hamm claims that he was denied the
effective assistance of counsel.     To prove ineffective assistance of counsel, a

defendant has to demonstrate that counsel’s performance was deficient and that the

deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142,

538 N.E.2d 373 (1989). Prejudice results when there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland at 694; Bradley at 142.

       {¶36} Hamm claims that he was denied the effective assistance of counsel
because attorney M.J. Donovan, who had represented him prior to trial, had failed to

immediately withdraw from representing both Hamm and Hill upon becoming aware

that Hill wanted to provide the state with evidence against Hamm. Hamm also

contends that Donovan was ineffective because she had assisted Hill in arranging a

meeting with Detective Pitchford so that Hill could provide the state with evidence

against Hamm.

       {¶37} Hamm’s      arguments     are     based   in   large   part   on   unsworn

representations of counsel made during a hearing on pretrial motions. To the extent




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                      OHIO FIRST DISTRICT COURT OF APPEALS


that our record contains some evidence concerning Donovan’s representation of

Hamm, that evidence is inconclusive.

       {¶38} First, the record is inconclusive concerning Donovan’s continuing
representation of Hamm and Hill after she learned that Hill had wanted to provide

evidence against Hamm. It appears that Donovan may have been representing both

Hill and Hamm at the time that Hill had spoken to Pitchford. But the record does

not conclusively indicate the exact date that Hill had spoken with Pitchford. Further,

the record does not indicate whether Donovan immediately moved to withdraw from

representing Hamm and Hill upon learning of her conflict, as Hamm contends that

she should have. Instead, it reflects only that the trial court allowed her to withdraw

on July 15, 2015, “for good cause shown.” And our record does not reflect whether or

when she moved to withdraw from representing Hill.          Finally, Hamm does not

expound on the reasons why Donovan was required to withdraw from representing

Hill, and we do not address here whether Donovan was required to do so.

       {¶39} Second, we are unable to determine whether Donovan assisted Hill in
providing information to Pitchford while she represented Hamm. Hill testified at

trial that he had contacted Donovan and told her that he had information about

Hamm. Hill further stated that, Donovan “stopped me from [sic] right there,” and

refused to speak to him about the matter. Hill did not know whether Donovan had

contacted the prosecutor’s office. And Detective Pitchford testified that “an attorney”

had contacted him about Hill.

       {¶40} Overall, we do not have a reliable basis for determining what Donovan
did or said. In sum, Hamm’s challenge depends for its resolution upon evidence

outside of the trial record. We therefore must overrule this assignment of error.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


                               Admission of Testimony

       {¶41} In his sixth assignment of error, Hamm contends that the trial court
abused its discretion and denied Hamm his due-process right to a fair trial by

admitting Hill’s testimony.

       {¶42} Hamm argues that the trial court should have excluded Hill’s
testimony because its “potential prejudicial impact or potential to mislead the jury

substantially outweighs its probative value.”     In support, he cites Evid.R. 403.

Hamm did not raise an Evid.R. 403 argument in the trial court. We therefore are

limited to review for plain error. Crim.R. 52(B); Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, at ¶ 22-23.

       {¶43} Evid.R. 403(A) provides, “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.” The admission or

exclusion of relevant evidence lies within the trial court’s sound discretion. Sage, 31

Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus.

       {¶44} Hamm first seems to argue that the “unfair prejudice” in this case was
that Donovan had violated Hamm’s Sixth Amendment right to counsel when she

allegedly contacted the prosecutor’s office to arrange for Hill to offer evidence

against Hamm. Even assuming that this occurred, Hamm’s requested relief is not

supported by law. We find no case law, and Hamm cites none, for the proposition

that the “prejudicial effect” contemplated by Evid.R. 403 includes a violation of the

Sixth Amendment right to the effective assistance of counsel. In other words, there

is no “exclusionary rule” for Sixth Amendment violations.
       {¶45} Hamm also seems to argue that the court abused its discretion because
Hill’s testimony was misleading to the jury, thereby violating Hamm’s due-process
right to a fair trial. Hamm claims that “[t]he circumstances under which the State
obtained Hill’s testimony raise serious questions regarding the reliability and true
origin of the information he related to the jury.” But Hill was subject to cross-


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                     OHIO FIRST DISTRICT COURT OF APPEALS


examination. Defense counsel fully explored Hill’s connection to Donovan, thereby
testing the credibility and reliability of his testimony. See State v. Nields, 93 Ohio
St.3d 6, 28, 752 N.E.2d 859 (2001) (“The procedural safeguard for the defense to test
the credibility and reliability of [a jailhouse informant’s] testimony was cross-
examination.”). Hamm has not shown how Hill’s testimony so “misled” the jury as to
mandate its exclusion under Evid.R. 403.
       {¶46} We therefore find no error, and no plain error.
                                Cumulative Error
       {¶47} In his seventh assignment of error, Hamm claims that the cumulative
effect of the errors at trial deprived him of his right to a fair trial. Under the
cumulative-error doctrine, a conviction may be reversed where a defendant has been
denied a fair trial by the cumulative effect of errors that have individually been
deemed harmless. State v. Cook, 1st Dist. Hamilton No. C-140118, 2014-Ohio-4900,
¶ 15, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph
two of the syllabus. We have found no error, harmless or otherwise. Accordingly,
the cumulative-error doctrine does not apply. This assignment of error is therefore
overruled.
       {¶48} The judgments of the trial court are affirmed.
                                                                Judgments affirmed.


CUNNINGHAM, P.J., and MYERS, J., concur.


Please note:

       This court has recorded its own entry this date.




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