        [Cite as State v. Harrison, 2016-Ohio-7579.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :    APPEAL NOS. C-150642
                                                                    C-150643
    Plaintiff-Appellee,                           :                 C-150645
                                                       TRIAL NOS. 14CRB-28913
  vs.                                             :               14CRB-28917
                                                                  14CRB-28919
ROBERT HARRISON,                                  :

    Defendant-Appellant.                          :       O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: November 2, 2016



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Heidi
Rosales, Senior Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA SIEVE HENDON, Presiding Judge.

       {¶1}   Following a jury trial, Robert Harrison was convicted of assaulting

three women. In this appeal, he argues that the trial court interfered with his right to

present a defense when it warned a defense witness against perjuring herself.

However, we conclude that no deprivation of due process occurred because the

court’s perjury admonition was not so intimidating that it prevented the witness

from testifying in Harrison’s behalf. We affirm the judgment of the trial court.

       {¶2}   Harrison and his girlfriend, Jean Gaines, had both been charged with

assault, stemming from the same incident. Gaines had been tried first. She had

testified at her own trial and had been acquitted.

       {¶3}   At Harrison’s trial, before Gaines was called to testify for the defense,

the court advised her outside of the jury’s presence:

              If it’s proven that you testified untruthfully in this proceeding,

       or testified untruthfully in another proceeding in which you were

       under oath, the possibility [is] that you could be charged with perjury.

       Perjury is a criminal offense for which there is a possibility of jail time

       and I just need to advise you of that.

              If you want to talk to counsel before testifying in that regard, we

       can make an attorney available from the public defender’s office. That

       is completely your decision, though, okay.

              So I just want to make sure that you understand the

       consequences really for your own benefit. Do you understand that?




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                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶4}   Gaines requested an attorney, and the court obtained a public

defender for her.      Then, after consulting with counsel, Gaines testified for the

defense.

          {¶5}   At the conclusion of the trial, Harrison was convicted and sentenced

accordingly. On appeal, he argues in a single assignment of error that the trial court

erred by giving a perjury admonition to Gaines. He contends that, by doing so, the

court substantially interfered with her testimony, in violation of his right to due

process.

          {¶6}   Due process guarantees a criminal defendant the right to establish a

defense by presenting his own witnesses. Washington v. Texas, 388 U.S. 14, 19, 87

S.Ct. 1920, 18 L.Ed.2d 1019 (1967).         Merely warning a defense witness of the

consequences of perjury does not, in and of itself, violate a defendant’s due-process

rights.    See United States v. Pierce, 62 F.3d 818, 832 (6th Cir.1995).          But a

defendant’s rights may be violated by unnecessarily strong admonitions against

perjury that are aimed at discouraging defense witnesses from testifying. Id.; Webb

v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). To establish such a

violation, the defendant must show that the admonition substantially interfered with

the witness’s free and voluntary choice to testify. Pierce at 833; United States v.

Foster, 128 F.3d 949, 953 (6th Cir.1997).

          {¶7}   In this case, Harrison has failed to demonstrate that the trial court’s

perjury admonition interfered with Gaines’ free and voluntary choice to testify. The

warning itself was not so strong that it “reache[d] the level of intimidation.” See

State v. Halley, 93 Ohio App.3d 71, 79, 637 N.E.2d 937 (10th Dist.1994). On the

contrary, even after the admonition, Gaines chose to testify in Harrison’s defense.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Moreover, the court’s provision of counsel for Gaines ensured that her decision to

testify had been “made voluntarily, in her own interest, rather than being the product

of judicial coercion.” See United States v. Santiago-Becerril, 130 F.3d 11, 24 (1st

Cir.1997). Consequently, we hold that Harrison’s due-process right to present a

witness in his own defense was not compromised by the trial court’s perjury

admonition. Accordingly, we overrule the sole assignment of error and affirm the

trial court’s judgments.

                                                                     Judgments affirmed.


CUNNINGHAM and STAUTBERG, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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