[Cite as State v. Taylor, 2017-Ohio-7140.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case Nos.     16CA72
DARRYL J. TAYLOR                               :                     16CA73
                                               :
                     Defendant-Appellant       :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case Nos.
                                                   2014CR0788R & 2016CR0478R


JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            August 4, 2017

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GARY BISHOP                                        R. JOSHUA BROWN
Prosecuting Attorney                               32 Lutz Avenue
By: JOSEPH C. SNYDER                               Lexington, OH 44904
Assistant Prosecutor
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 16CA72 & 16CA73                                                 2

Gwin, P.J.

       {¶1} Appellant, Darryl J. Taylor [“Taylor”] appeals his convictions for murder and

tampering with evidence after a jury trial in the Richland County Court of Common Pleas.

                                  Facts and Procedural History

       {¶2} On August 12, 2014, an indictment was filed in the Common Pleas Court of

Richland County, Ohio. Count One of the Indictment charged Taylor (aka) "Wheezy" with

one count of Having Weapons While Under Disability in violation of R.C. 2923.13(A)(2), a

felony of the third degree. Count Two of the Indictment charged Taylor with Receiving

Stolen Property in violation of R.C. 2913.51(A), a felony of the fourth degree; the property

involved being a firearm as defined in R.C. 2923.11. These crimes were alleged to have

occurred between on or about May 9, 2014 and on or about July 7, 2014. The indictment

was assigned Case Number 2014-CR-468.

       {¶3} On October 23, 2014, a Motion to Suppress and/or Limine to Bar the

Introduction of Evidence was filed on behalf of Taylor. This motion asked for an order

excluding and/or suppressing all statements gained from the custodial interrogation of

appellant “on or about July 9, 2014.” (Sic) The interview actually occurred on July 7, 2014.

The essence of the motion was that Taylor was not given Miranda warnings prior to his

custodial interrogation in violation of the Fifth and Fourteenth Amendments to the U.S.

Constitution and Section 10, Article 1 of the Ohio Constitution. A hearing was held

November 12, 2014. A Judgment Entry overruling Taylor’s Motion to Suppress was filed

November 19, 2014. On December 5, 2014, Taylor entered a no contest plea to both

counts in Case Number 2014-CR-468.
Richland County, Case No. 16CA72 & 16CA73                                             3


       {¶4} On December 8, 2014, an indictment was filed in Case No. 2014-CR-788,

charging Taylor with murder. The murder was alleged to have occurred on or about July

7, 2014.

       {¶5} Taylor filed a motion to withdraw his no contest plea in Case No. 2014-CR-

468 on January 2, 2015. The trial court granted Taylor’s request by Judgment Entry filed

January 22, 2015. The state filed a motion for joinder requesting Case Numbers 2014-

CR-468 and 2014-CR-788 (Murder indictment) be tried together. The trial court granted

the motion to join the two cases.

       {¶6} Case numbers 2014-CR-468 and 2014-CR-788 were eventually scheduled

for trial on September 8, 2016. On August 29, 2016, Taylor again entered a no-contest

plea to both counts in Case No. 2014-CR-468, Having Weapons While Under Disability

and Receiving Stolen Property. The Court held sentencing in abeyance and Taylor

proceeded to trial in Case No. 2014-CR-788 the Murder charge.

       {¶7} On July 15, 2016, Taylor was indicted for Tampering with Evidence. The

indictment was assigned Case Number 2016-CR-478. The date alleged was July 7, 2014.

       {¶8} The Tampering with Evidence case and Murder case were joined. Taylor

was found guilty by a jury of both counts.

       {¶9} In Case Number 2014-CR-468 the court imposed a 24 month prison

sentence on Count I for Having a Weapon While Under Disability and merged Count II

with Count I. The 24 months imposed in 2014-CR-468 was to run consecutive to the

sentence imposed in 2014-CR-788 [Murder] and 2016-CR-478 [Tampering with

Evidence].
Richland County, Case No. 16CA72 & 16CA73                                               4


       {¶10} As to the tampering with evidence charge, the trial court imposed a sentence

of 36 months. As to the murder charge, the trial court imposed a sentence of 15 years to

life and three years for the firearm specification. The sentences were ordered to run

consecutively to one another.

       July 7, 2014: Bonnie Tittle Called To Report That Her Mother Deborah Hovestatd

Had Been Shot.

       {¶11} Bonnie Tittle called 9-1-1 and spoke with Cynthia VanWagner-Alt, a

dispatcher at the 9-1-1 center to report a shooting. The call came in at 10:13 a.m. Bonnie

was the daughter of the shooting victim, Deborah Hovestatd. Cynthia asked Bonnie on

multiple occasions who shot her mother. Bonnie steadfastly said she did not know.

Cynthia asked Bonnie if the boyfriend shot her, and Bonnie replied no. Bonnie advised

Cynthia that Taylor is the one that told her to call the police. The police interviewed

Bonnie on two occasions on July 7, 2014, giving the same responses. However, on July

11, 2014, Bonnie told the police that she had been awoken by a gunshot and was standing

by the front door with her daughter in her arms when Taylor came running down the

hallway saying, “I accidentally just shot your mom.”

       {¶12} On July 7, 2014, Sergeant Gordon of the Richland County Sheriff's Office

[“RCSO”] was dispatched to 1273 Kings Corners East Road in Richland County, Ohio in

response to a report that there was a deceased person at that location. Upon Sergeant

Gordon's arrival, he noticed several people in the area that were distraught/upset.

Sergeant Gordon discovered a deceased D. H. lying on a bed covered up to the crown of

her head with a comforter. D.H. had a gunshot wound in her mouth area. Her right arm

was visible and in her hand laid a stainless steel .44 Magnum Ruger Super Red Hawk
Richland County, Case No. 16CA72 & 16CA73                                                      5


gun. After kicking the gun out of her hand for their safety, the officers discovered the

wound to her face and a large among of blood.               When paramedics arrived, they

pronounced her dead at the scene.

         {¶13} Detective Duane Kilgore made a recommendation to contact BCI to process

the scene. Detective Kilgore testified he believed the scene looked suspicious, based on

"the caliber, the large size of that gun, where it was placed...” (3T. at 385). "I just felt that

it was probably highly unlikely that gun would still be in her hand if she had shot herself.”

(3T. at 386). Testimony was presented that the handgun would generally take two hands

to operate due to a massive recoil.

         {¶14} BCI Special Agent George Staley, Jr. arrived to process the scene. Agent

Staley waited for the arrival of a search warrant before entering 1273 Kings Corners Road.

Photos were taken, evidence gathered, and the scene was processed. One of the items

gathered was a comforter that was covering Deborah Hovestatd. During the autopsy, a

piece of white, fuzzy debris possibly from the comforter was removed from the decedent’s

mouth.

         {¶15} The lead investigator for the Richland County Coroner's Office testified that

he would expect to see certain things in a suicide so he looked for blood spatter, contact

wounds, blood on the gun, and burn marks. He expected to see more blood spatter in a

suicide than was present at the scene. He expected to see a significant contact wound,

but did not find one on the decedent. He expected to see blood on the gun; however only

a small amount was found. No stippling or burn marks were found on the decedent.
Richland County, Case No. 16CA72 & 16CA73                                                     6


        {¶16} Given the lack of a large deposit of nitrate on the comforter, the Richland

County Coroner believed that the gunshot would have been fired a couple of feet away

from the victim.

        {¶17} In October 2014, a request was made for a contact shot to be performed for

comparison purposes. The request involved the handgun and comforter that were taken

into evidence. Agent Staley placed the comforter on a piece of cardboard inside the

firearms range at BCI. The barrel of the gun was put directly against the comforter and

the weapon fired. This was done to establish a standard of what the contact shot would

have looked like. Staley opined the hole made from the contact shot is completely different

from the one that was observed originally at the scene.

        {¶18} Andrew Chappell of BCI examined the comforter. A section of the comforter

that contained potential bullet holes was cut from the comforter for analysis. Contact shots

were Chappell's initial focus as they are very distinctive. There is a burning or singeing of

the fabric right around the hole, along with a tearing or ripping of the fabric in a star shaped

pattern. Those characteristics were not found on the comforter examined by Chappell.

The potential bullet holes were also processed chemically for nitrites and lead. Chappell

described the distance between the barrel of the gun and the comforter as greater than

contact.

        {¶19} As one of the officers was writing his report, he was asked to take Taylor to

the police station to give a statement. Taylor was sobbing constantly. When Taylor was

sobbing, there were no tears and it appeared to be fake. However, when the police told

Taylor to calm down and asked Taylor for his social security number he stopped sobbing

and calmly gave it to them. A decision was made to conduct interviews with Taylor, Bonnie
Richland County, Case No. 16CA72 & 16CA73                                                            7


Tittle and Shane Lambert. Mr. Lambert was Deborah Hovestatd’s son and had spent the

previous evening at the residence. All three were transported to the sheriff's office in

separate law enforcement vehicles.           Interviews were conducted and all three were

released.1

       {¶20} At trial, Taylor produced an expert on crime scene analysis. The state

obtained their own expert on the subject. Both experts offered competing testimony as to

whether this was a suicide or a homicide. The state's expert found that the crime scene

had been "altered."

                                           Assignments of Error

       {¶21} Taylor presents three assignments of error for our consideration:

       {¶22} “I. THE TRIAL COURT COMMITTED AN ERROR WHEN IT REFUSED TO

GRANT APPELLANT'S MOTION TO DISMISS THE TAMPERING WITH EVIDENCE

CHARGE IN CASE NO. 16-CR-478.

       {¶23} “II. THE TRIAL COURT IMPROPERLY ALLOWED THE PROSECUTION

TO PRESENT CHARACTER AND HEARSAY EVIDENCE TO PORTRAY APPELLANT

AS VIOLENT.

       {¶24} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

ALLOWED STEPHANIE CORNER TO EXPRESS HER PERSONAL OPINION THAT

WOMEN DO NOT SHOOT THEMSELVES.”




       1 Taylor’s statements to the police were the subject of the appeal in State v. Taylor, 5th Dist.
Richland No. 16CA66, 2017-Ohio-4059.
 Richland County, Case No. 16CA72 & 16CA73                                                    8


                                                    I.

            {¶25} Taylor argues that the state was aware of the facts that give rise to his

indictment for Tampering with Evidence on December 17, 2014, the date that the state

indicted Taylor on the murder charge in Richland County Court of Common Pleas, Case

No. 2014 CR 0788. The state argues that it did not violate Taylor’s right to a speedy trial

because “[t]he new evidence that came to light was an expert’s finding that the crime scene

had been tampered with.” [Appellee’s Brief at 5].

            {¶26} The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial

jury....”

                  Prior to conviction, the accused is shielded by the presumption of

            innocence, the “bedrock [,] axiomatic and elementary principle whose

            enforcement lies at the foundation of the administration of our criminal law.”

            Reed v. Ross, 468 U. S. 1, 4 (1984) (internal quotation marks omitted). The

            Speedy Trial Clause implements that presumption by “prevent[ing] undue

            and oppressive incarceration prior to trial . . . minimiz[ing] anxiety and

            concern accompanying public accusation [,] and . . . limit[ing] the

            possibilities that long delay will impair the ability of an accused to defend

            himself.” Marion, 404 U. S., at 320 (internal quotation marks omitted). See

            also Barker v. Wingo, 407 U. S. 514, 532–533 (1972).

 Betterman v. Montana, 578 U.S. __, 136 S.Ct. 1609, 1614, 194 L.Ed.2d 723(2016).

            {¶27} The right to a speedy public trial is established in the Ohio Constitution,

Article I, Section 10. “In any trial, in any court, the party accused shall be allowed to appear
Richland County, Case No. 16CA72 & 16CA73                                                    9


and defend in person and with counsel; to demand the nature and cause of the accusation

against him, and to have a copy thereof; to meet the witnesses face to face, and to have

compulsory process to procure the attendance of witnesses in his behalf, and a speedy

public trial by an impartial jury of the county in which the offense is alleged to have been

committed * * *.” (Emphasis added.) See, State v. MacDonald, 48 Ohio St. 2d 66, 68, 2

O.O.3d 219, 220, 357 N.E.2d 40, 42(1976).

        {¶28} R.C. 2945.71 codifies a defendant's right to a speedy trial and provides the

time within which a hearing or trial must be held for specific offenses.

        {¶29} A person charged with a felony shall be brought to trial within 270 days after

the person's arrest or the service of summons.” R.C. 2945.71(C)(2). A person against

whom one or more charges of different degrees, whether felonies, misdemeanors, or

combinations of felonies and misdemeanors, all of which arose out of the same act or

transaction, are pending shall be brought to trial on all of the charges within the time period

required for the highest degree of offense charged. R.C. 2945.71(D). Each day an

accused is held in jail shall be counted as 3 days. R.C. 2945.71(E).

        {¶30} “Upon motion made at or prior to the commencement of trial, a person

charged with an offense shall be discharged if he is not brought to trial within the time

required by sections 2945.71 and 2945.72 of the Revised Code.” R.C. 2945.73(B).

“[S]uch discharge is a bar to any further criminal proceedings against him based on the

same conduct.” R.C. 2945.73(D).

        {¶31} A speedy-trial claim involves a mixed question of law and fact. State v.

Larkin, 5th Dist. No. 2004-CA-103, 2005-Ohio-3122. As an appellate court, we must

accept as true any facts found by the trial court and supported by competent, credible
Richland County, Case No. 16CA72 & 16CA73                                               10


evidence. With regard to the legal issues, however, we apply a de novo standard of review

and thus freely review the trial court’s application of the law to the facts. Id. When

reviewing the legal issues presented in a speedy-trial claim, we must strictly construe the

relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d

706, 709(1996).

       {¶32} In the case at bar, Taylor was indicted for murder on December 17, 2014.

From the first moments of the case, the state was faced with a crime scene, which

appeared to indicate that the decedent had committed suicide. She was found lying in

bed with a handgun in her hand. Numerous police and investigators who testified at trial

commented that the violent recoil of the particular handgun, which the state characterized

throughout the trial as a “hand cannon,” made it nearly impossible to fire with one hand.

The obvious inference to be drawn is that the gun had been placed in the decedent’s hand

after she had been shot. Additionally, nearly every witness who observed the crime scene

found it unusual that the comforter had been pulled up over nearly the entire head of the

victim. Yet, no contact bullet holes or gunshot residue was found on the blanket. In fact,

these discrepancies are what led the state to believe that the crime scene had been staged

to look like a suicide. The addition of the state’s expert witness did not involve any new

“fact” simply a conclusion. The expert was not retained by the state at the start of the

case, but only hired by the state to refute an expert hired by the defense. Yet from the

beginning of the case, the state had to prove that Taylor shot the victim and that she had

not committed suicide.

       {¶33} Since the charges in the subsequent indictment for tampering with evidence

stem from the identical facts that the state knew at the time of the murder indictment was
Richland County, Case No. 16CA72 & 16CA73                                                11


filed, the state was required to bring the accused to trial within the same statutory period

as the original charge under R.C. 2945.71 et seq. However, that does not end the inquiry.

       {¶34} The time to bring a defendant to trial can be extended for any of the reasons

enumerated in R.C. 2945.72, which provides:

                The time within which an accused must be brought to trial, or, in the

    case of felony, to preliminary hearing and trial, may be extended only by the

    following:

                                                    ***

                (H) The period of any continuance granted on the accused's own

       motion, and the period of any reasonable continuance granted other than

       upon the accused's own motion.

       {¶35} Extensions relating to the original charge, in this case Murder, apply to the

latter indictment i.e., Tampering with Evidence. State v. Bickerstaff, 9th Dist. Medina No.

C.A. No. 1141, 1982 WL 2840(Nov. 17, 1982)2, citing State v. Bonarrigo, 62 Ohio St.2d 7,

402 N.E.2d 530(1980).

       {¶36} In Case No. 2014 CR 0788, Murder, Taylor was arrested on the indictment

on December 12, 2014. Taylor’s case was scheduled for a jury trial on March 2, 2015.

On February 26, 2015, Taylor filed a motion to continue the trial date. The trial court

granted the motion and tolled time until April 20, 2015.

       {¶37} On April 7, 2015, Taylor filed a motion to continue the trial date. The trial

court granted the motion and tolled time to June 15, 2015.




       2   Aff’d State v. Bickerstaff, 10 Ohio St.3d 62, 461 N.E.2d 892(1984).
Richland County, Case No. 16CA72 & 16CA73                                                 12


       {¶38} On June 4, 2015, Taylor filed a motion to continue the trial date. The trial

court granted the motion and tolled time until September 14, 2015.

       {¶39} On August 26, 2015, Taylor filed a motion to continue the trial. The trial court

granted the motion and tolled time until November 2, 2015.

       {¶40} On October 9, 2015, Taylor’s new trial counsel filed a motion to continue the

trial. The trial court granted the motion and tolled time to February 1, 2016.

       {¶41} On January 22, 2016, Taylor filed a motion to continue the trial. The trial

court granted the motion and tolled time until April 18, 2016.

       {¶42} At the final pre-trial conference held March 9, 2016, the trial court granted a

continuance and tolled time to May 16, 2016.

       {¶43} On April 20, 2016, Taylor filed notice of service of the report of his expert

witness upon the state pursuant to Crim.R. 16(K).

       {¶44} On May 10, 2016, the state filed a motion to continue the trial date. Citing

the numerous continuances granted to the defense, the trial court granted the state’s

motion and tolled time until September 8, 2016.

       {¶45} On July 15, 2016, the indictment was filed in Case No. 2016 CR 0478,

Tampering with Evidence.

       {¶46} On August 23, 2016, in Case No. 2014 CR 0788, Murder, the state filed a

motion to join the Tampering with Evidence case with the Murder case.

       {¶47} On September 2, 2016, the trial court granted the state’s motion and joined

Case No. 2016 CR 0478, Tampering with Evidence with Case No. 20114 Cr 0788, Murder.

       {¶48} The jury trial in Case No. 2014 CR 0788, Murder and Case No. 2016 CR

0478 Tampering with Evidence commenced September 8, 2016.
Richland County, Case No. 16CA72 & 16CA73                                                13


       {¶49} Thus, the time calculation is:

              December 12, 2014 to February 26, 2015        77 days

              February 26, 2015 to September 8, 2016       Time tolled

       {¶50} Accordingly, Taylor was tried within the 270-day requirement set forth in R.C.

2945.71(C)(2).

       {¶51} Taylor’s first assignment of error is overruled.

                                                II.

       {¶52} In his second assignment of error, Taylor argues that the state was permitted

to present other acts evidence that portrayed him as a violent person. Specifically, Brandi

Andrews testified that two to three weeks prior to the incident she attend a cookout at

which the victim and Taylor were present. The pair were arguing and at one point Taylor

grabbed the victim’s cell phone and threw it into the swimming pool. When Andrews later

saw the victim inside the house, she had a red mark near her eye. Upon being asked what

happened, the victim told Andrews that Taylor had struck her. (4T. at 629-630). Taylor

objected to Andrews testifying as to what the victim told her. (4T. at 630).

       {¶53} In general, “[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person to show action in conformity therewith.” Evid.R. 404(B).

“It may, however, be admissible * * * [to prove] motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.” Id.

       {¶54} A trial court has broad discretion in deciding whether to admit or exclude

other-acts evidence. See State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15

N.E.3d 818, ¶ 67. Thus, ordinarily we defer to a trial court's evidentiary ruling unless the
Richland County, Case No. 16CA72 & 16CA73                                                14


court “has clearly abused its discretion and the defendant has been materially prejudiced

thereby.” State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).

        {¶55} Evidence that an accused committed a crime other than the one for which

he is on trial is not admissible when its sole purpose is to show the accused's propensity

or inclination to commit a crime, or that he acted in conformity with bad character. State

v. Morgan, 12th Dist. Butler Nos. CA2013–08–146 and CA2013–08–147, 2014–Ohio–

2472.   However, there are certain exceptions that allow evidence of other acts of

wrongdoing.

        {¶56} R.C. 2945.59 provides,

                In any criminal case in which the defendant's motive or intent, the

        absence of mistake or accident on his part, or the defendant's scheme, plan,

        or system in doing an act is material, any acts of the defendant which tend

        to show his motive or intent, the absence of mistake or accident on his part,

        or the defendant's scheme, plan, or system in doing the act in question may

        be proved, whether they are contemporaneous with or prior or subsequent

        thereto, notwithstanding that such proof may show or tend to show the

        commission of another crime by the defendant.

        {¶57} Also, Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts

is permitted to show proof of motive, opportunity, intent, preparation, plan, knowledge, and

identity, of the absence of mistake or accident. State v. Kirkland, 140 Ohio St.3d 73, 2014–

Ohio–1966.

        {¶58} The Ohio Supreme Court laid out a three-part test to determine if other acts

evidence is admissible. State v. Williams, 134 Ohio St.3d 521, 2012–Ohio–5695. First,
Richland County, Case No. 16CA72 & 16CA73                                                  15


the court is to “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. Second, the court is to consider “whether evidence

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

show activity in conformity therewith or whether the other acts evidence is presented for a

legitimate purpose, such as those stated in Evid.R. 404(B).” Id. Third, the court is to

consider “whether the probative value of the other acts evidence is substantially

outweighed by the danger of unfair prejudice.” Id.

        {¶59} The state contends that the evidence was admissible to show Taylor’s

identity as the murderer of Hovestatd citing State v. Griffin, 142 Ohio App.3d 65(2001). In

Griffin, the Defendant was indicted for murder and he too tried to argue that the victim had

instead committed suicide. Griffin, 142 Ohio App.3d at 65. In Griffin, the state presented

testimony from the Defendant's neighbors who observed him physically assault or threaten

his wife in the weeks before her death. Specifically, evidence of other episodes in which

Griffin had threatened to kill his wife with the same gun. Id. at 73. This information was

found to be admissible other acts evidence to prove identity. The court in Griffin ruled that,

"Identity is in issue when the fact of the crime is open and evident but the perpetrator is

unknown and the accused denies that that [sic] he committed the crime.” Griffin at 73.

        {¶60} The court in Griffin noted that the Second District Court of Appeals

reached the opposite conclusion in a murder versus suicide case. In State v. Hawn,

138 Ohio App.3d 449, 741 N.E.2d 594(2000), the defendant called the police to say

that his girlfriend had just committed suicide. She had been shot in the chest. The

trial court admitted extrinsic acts evidence that the defendant had injured her in the
Richland County, Case No. 16CA72 & 16CA73                                                 16


past to prove his identity as her murderer. The appellate court reversed, concluding

that the defendant’s identity was not genuinely at issue:

             According to the theory of the state’s case and the evidence it

       presented, if the alleged crime took place at all, no person other than [the

       defendant] could have committed it. Further, [the defendant] did not claim

       that another person had murdered [the victim]. Instead, he denied that she

       was murdered at all. The only genuine issue, therefore, was whether [the

       victim] was murdered or whether she committed suicide. Because the

       identity of the perpetrator of the state’s murder alternative was not in issue,

       evidence of [the defendant’s] prior acts extrinsic to the operative facts of the

       crime alleged was not admissible ... to prove identity.

138 Ohio App.3d at 463.         This was similar to the view expressed by the

concurrence in Griffin. It concluded that the majority’s reasoning in Griffin

“confuses identity with culpability,” and “a plea of not guilty with a genuine issue of

identity.” In a murder prosecution, the victim cannot be “another” suspected of the

criminal act. And a defendant’s claim that the victim committed suicide is refuted

if the state meets it burden to prove that the victim died “as a result of the criminal

agency of another.” Griffin, 142 Ohio App.3d at 87.

       {¶61} In the case at bar, the evidence that Taylor may have struck the victim is not

the same as evidence that he threatened to kill her with the same gun used to shoot the

victim as was true in Griffin. We believe the better-reasoned view is that the state had to

prove that a crime was committed and if it succeeded then the defendant’s identity as the

perpetrator was certain.
Richland County, Case No. 16CA72 & 16CA73                                               17

       {¶62} Regarding the test set out in Williams, we find that the trial court did abuse

its discretion in admitting the evidence.    First, the other acts evidence was of no

consequence in the determination of what occurrences or facts were probable to exist.

Second, the testimony was irrelevant to prove Taylor's identity. Third, the probative value

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

       {¶63} However, that does not end our inquiry.      “[T]he real issue when Evid.R.

404(B) evidence is improperly admitted at trial is whether a defendant has suffered any

prejudice as a result. If not, the error may be disregarded as harmless error. And while

courts may determine prejudice in a number of ways and use language that may differ,

they focus on both the impact that the offending evidence had on the verdict and the

strength of the remaining evidence. Both the error’s impact on the verdict and the weight

of the remaining evidence must be considered on appellate review.” State v. Morris, 141

Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 25. In State v. Harris, 142 Ohio St.3d

211, 2015-Ohio-166, 28 N.E.3d 1256, the Ohio Supreme Court observed,

              Crim.R. 52(A) defines harmless error in the context of criminal cases

       and provides: “Any error, defect, irregularity, or variance which does not

       affect substantial rights shall be disregarded.” Under the harmless-error

       standard of review, “the government bears the burden of demonstrating that

       the error did not affect the substantial rights of the defendant.” (Emphasis

       sic.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,

       ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770, 123

       L.Ed.2d 508 (1993). In most cases, in order to be viewed as “affecting

       substantial rights,” “‘the error must have been prejudicial.’     (Emphasis
Richland County, Case No. 16CA72 & 16CA73                                             18

       added.)” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d

       222, ¶ 7, quoting Olano at 734, 113 S.Ct. 1770. Accordingly, Crim.R. 52(A)

       asks whether the rights affected are “substantial” and, if so, whether a

       defendant has suffered any prejudice as a result. State v. Morris, 141 Ohio

       St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24–25.

             Recently, in Morris, in a four-to-three decision, we examined the

       harmless-error rule in the context of a defendant's claim that the erroneous

       admission of certain evidence required a new trial. In that decision, the

       majority dispensed with the distinction between constitutional and non-

       constitutional errors under Crim.R. 52(A). Id. at ¶ 22–24. In its place, the

       following analysis was established to guide appellate courts in determining

       whether an error has affected the substantial rights of a defendant, thereby

       requiring a new trial. First, it must be determined whether the defendant

       was prejudiced by the error, i.e., whether the error had an impact on the

       verdict. Id. at ¶ 25 and 27. Second, it must be determined whether the

       error was not harmless beyond a reasonable doubt. Id. at ¶ 28. Lastly,

       once the prejudicial evidence is excised, the remaining evidence is weighed

       to determine whether it establishes the defendant's guilt beyond a

       reasonable doubt. Id. at ¶ 29, 33.

Harris, ¶ 36-37.

       {¶64} In the case at bar, we find that Andrew’s testimony concerning the incident

between Taylor and the victim at the cookout did not influence the verdict, was harmless

beyond a reasonable doubt and when excised the remaining evidence establishes Taylor’s
Richland County, Case No. 16CA72 & 16CA73                                                 19


guilty beyond a reasonable doubt. The jury had ample evidence that Taylor shot the victim

and attempted to make it look as though she had committed suicide. At trial, the state

presented expert testimony from BCI examiners, the coroner’s examiner and an

independent expert witness to establish that Taylor had shot Hovestatd. The other acts

testimony was limited to one instance, was brief and was not so inflammatory as to prevent

the jury from carefully reviewing all the evidence before arriving at their verdict. In fact,

the jury found Taylor not guilty of aggravated murder.

       {¶65} Taylor’s second assignment of error is overruled.

                                                 III.

       {¶66} In his third assignment of error, Taylor contends the trial court committed

reversible error when it allowed Stephanie Comer to express her personal opinion that

women do not shoot themselves.

       {¶67} Evid.R. 701, which governs opinion testimony by lay witnesses, provides: “If

the witness is not testifying as an expert, the witness' testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (1) rationally based on the

perception of the witness and (2) helpful to a clear understanding of the witness' testimony

or the determination of a fact in issue.” See also, State v. McKee, 91 Ohio St.3d 292, 297,

2001-Ohio-41 (2001).

       {¶68} The distinction between lay and expert-witness opinion testimony is that lay

testimony results from a process of reasoning familiar in everyday life, while expert

testimony results from a process of reasoning that only specialists in the field can master.

State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737(2001).

       {¶69} Comer is a paramedic with 18 years of experience. She also testified that
Richland County, Case No. 16CA72 & 16CA73                                           20


she put in roughly 2000 hours of training. The paramedic said that she had responded to

somewhere between 60 to 100 suicide calls. In applying her years of experience and

training, she was asked how the scene appeared to her. She testified, "Women don't

shoot … their selves [sic]." 2T. at 367. The trial court ruled this statement was made

based on her experience and training.

        {¶70} Comer testified based upon her own perceptions and personal and work-

related experiences. There was nothing unreasonable, arbitrary, or unconscionable about

the trial court's handling of the lay-opinion testimony in this case.

        {¶71} Taylor’s third assignment of error is overruled.

        {¶72} The judgment of the Richland County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Wise, John, J., and

Baldwin, J., concur
