 [Cite as State v. Miller, 2013-Ohio-5621.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 JAMES D. MILLER

         Defendant-Appellant



 Appellate Case No.        25504

 Trial Court Case No. 2012-CR-1553

 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                               Rendered on the 20th day of December, 2013.

                                              ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery
County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 209, Kettering,
Ohio 45429
       Attorney for Defendant-Appellant

                                              .............
                                                                                              2


WELBAUM, J.

        {¶ 1}    Defendant-Appellant, James D. Miller, appeals from his conviction for Felony

 Murder and the predicate offense of Felonious Assault following a jury trial. Miller contends

 that the trial court erred in failing to instruct the jury on the lesser included offenses of Reckless

 Homicide and Involuntary Manslaughter. He also claims that the trial court erred in admitting a

 prior inconsistent statement to the jury as substantive evidence. Additionally, he argues that his

 conviction was against the manifest weight of the evidence, because there was insufficient

 evidence to prove that he committed the predicate offense of Felonious Assault.

        {¶ 2}    We conclude that the trial court did not err in failing to instruct the jury on the

 lesser included offenses of Reckless Homicide and Involuntary Manslaughter. Based on the

 evidence in the record, no reasonable jury could have found Miller not guilty of the greater

 offense of Felony Murder, but guilty of the lesser included offense of Reckless Homicide and/or

 Involuntary Manslaughter. We further conclude that the trial court erred in admitting a prior

 inconsistent statement to the jury, but that such error was harmless and did not affect the outcome

 of trial. Additionally, Miller’s conviction for Felonious Assault was not against the manifest

 weight of the evidence. The evidence establishes that Miller knowingly caused physical harm to

 the victim by means of a deadly weapon. Accordingly, there was sufficient evidence to convict

 Miller of Felonious Assault as the predicate offense to Felony Murder.

                               I. Facts and Course of Proceedings

        {¶ 3}    On June 11, 2012, James D. Miller was indicted on one count of Felony Murder

 under R.C. 2903.02(B) as a proximate result of committing Felonious Assault.         The indictment

 also included a three-year firearm specification. Miller pled not guilty and a jury trial took place
                                                                                          3


on October 15, 2012. The following information was elicited at trial.

       {¶ 4}    On April 9, 2012, Renaldo “Woody” Woodbury was shot in the head and killed

on the front porch of a duplex located at 47/49 Forest Glen Avenue Dayton, Ohio. Renaldo

lived at 47 Forest Glen with his girlfriend and the mother of his child, Holly McReynolds.

Miller was Holly’s 17-year-old brother, and he had been living with Holly and Renaldo for

approximately three weeks. Holly and Miller’s mother, Denise Miller, and their uncle, Alger

Wilkins, were also living at 47 Forest Glen on a temporary basis.

       {¶ 5}    On the morning of Renaldo’s shooting, Denise drove Miller to see his girlfriend,

Arielle Johnson. Denise dropped Miller off at Arielle’s apartment around 8:30 a.m. Miller

stayed at Arielle’s apartment until 1:00 p.m., and then went to visit a friend named Chicago, who

lived across the street from Arielle.

       {¶ 6}    After dropping Miller off at Arielle’s, Denise went searching for a job and a new

apartment. She returned to 47 Forest Glen around 4:00 or 5:00 p.m. When Denise returned,

Renaldo and Holly told her that they wanted Miller to move out, because they had a problem with

the friends he was inviting into their home. In response, Denise packed some of Miller’s

belongings, and called his cell phone to inform him that he was going to have to move.

       {¶ 7}    At 4:33 p.m., Arielle received a text message from Miller saying, “Can I get $2 or

some change, me and big bra are trying to get a box of bullets, I’ll be honest.” Trans. Vol. II

(Oct.16, 2012), p. 334, ln. 9-10. Shortly thereafter, Miller stopped by Arielle’s apartment and

she gave him a few dollars. At 8:56 p.m., Miller texted Arielle again saying, “I love you.

Whatever happens tonight, that will never change.” Id. at 338, ln. 3-4. Around 9:30 p.m.,

Miller sent a third text message to Arielle saying, “I’m about to do something very permanent.”
                                                                                           4


Id. at 339, ln. 13-14. Arielle was on the phone and did not see Miller’s third text message right

away.

        {¶ 8}      Between 9:00 and 9:30 p.m., Denise picked Miller up at Chicago’s apartment and

drove him back to 47 Forest Glen. When Denise and Miller arrived at 47 Forest Glen, Renaldo

and Alger were sitting on the front porch smoking cigarettes. Denise testified that as she and

Miller approached the front porch of the duplex, Renaldo began speaking to Miller in an

aggressive tone and they started arguing. She said that Miller and Renaldo remained on opposite

sides of a rail that was located in the middle of the front porch. According to Denise, Miller and

Renaldo were moving around on the porch and Alger was trying to get in between them, but no

one made physical contact or fought.

        {¶ 9}      Denise testified that she was standing by a pillar on the porch when she heard a

gunshot and saw Renaldo collapse. She claimed that she never saw Miller pull out a gun or

shoot Renaldo. The State impeached her testimony at trial with a prior statement she had written

for police stating, “And out of nowhere, my son pulled a gun out and shot him.” Id. at 461, ln.

5-10. Denise also admitted that she told 911 her son shot Renaldo. Id. at 456, ln. 17-21.

        {¶ 10} Alger Wilkins testified that he was standing in between Miller and Renaldo on

the front porch as they were arguing. He remembered that Renaldo was standing in front of 49

Forest Glen behind a rail that divided the front porch, and Miller was standing on the other side

of the rail in front of 47 Forest Glen. Alger claims that he did not touch Miller or Renaldo, and

that Miller and Renaldo did not engage in any physical contact with each other. According to

Alger, Renaldo never threatened Miller, but Miller said, “I’ll smoke you fool” to Renaldo. Id.

at 518, ln. 1-3.
                                                                                          5


       {¶ 11} After Miller threatened Renaldo, Alger saw Miller pull out a gun from his waist

and point it at Renaldo. Alger tried to get the gun from Miller, but Miller kept moving the gun

out of his way to keep him from reaching it. During this time, Alger observed that the hammer

of the gun had already been cocked. Alger claims he saw Renaldo’s hands come over his

shoulder toward Miller’s gun when the gun went off. Alger grabbed the gun from Miller’s

hands as it went off. After the gun fired, Alger followed Miller off the porch to chastise him

about having a gun. Alger did not realize that Renaldo had been shot until he heard Holly

scream and turned to see Renaldo lying on the porch.    At that moment, he saw Miller run away

from 47 Forest Glen. Alger gave the gun to Denise and ran after Miller, but was unable to catch

him.

       {¶ 12} Betty Asamoah, a neighbor who resides at 55 Forest Glen, observed the shooting

while standing outside her house. Betty testified that Holly, Denise, Alger, Renaldo, and Miller

were standing on the front porch of 47/49 Forest Glen while Renaldo and Miller were arguing.

Specifically, Betty heard Renaldo tell Miller to leave his house, get off the porch, and to stop

being disrespectful. Thereafter, she heard Holly tell Miller to follow Renaldo’s instructions, but

Miller said he was not going anywhere. Betty then heard Miller tell Renaldo, “I’ll shoot your

ass” or “Shut the f**k up before I shoot your ass.” Id. at 273, ln. 12; 297, ln. 18-25. After his

threat, Betty saw Miller point a gun straight at Renaldo and shoot him. Betty testified that

Renaldo never came at Miller and that the two never engaged in a physical struggle. In fact,

Betty said that Miller and Renaldo were not close enough to touch each other. According to

Betty, there was no movement on the porch and Alger never attempted to separate them. She

said Renaldo and Miller simply stood on the porch and yelled back and forth while everyone
                                                                                              6


watched.

       {¶ 13} Betty, who is a registered nurse, ran to the porch to provide medical assistance to

Renaldo after he was shot. By the time she reached the porch Miller had run away. In order to

attempt to stop Renaldo’s bleeding, Betty placed a blanket over Renaldo’s face where he had

been shot. Betty detected a slight pulse at first, but Renaldo eventually died in her arms.

       {¶ 14} Around 10:00 p.m., Arielle Johnson saw Miller’s third text message saying that

he was going to do “something very permanent.” The message worried her, so she called Miller

on his cell phone. When Miller picked up the phone, the first thing Arielle heard was a female

scream and a male yelling “Get back here.” Id. at 340, ln. 21-25. She then heard Miller say, “I

shot him.” Id. at 341, ln. 21-25. Arielle asked what he meant, and Miller said, “I shot Woody.”

 Id. at 324, ln. 13-16. Miller asked Arielle to hold on the line, and as she was holding, she heard

wind and running for about three minutes. When Miller got back on the line he said, “I’ll call

you back. I love you.” Id. at 343, ln. 12-13. Miller then hung up and Arielle never heard back

from him.

       {¶ 15} After hearing a physical description of Miller over the radio, Officers Walter

Evans and Kyle Dickerson of the Dayton Police Department spotted Miller by the door of a Taco

Bell in the 4200 block of North Main Street. As they pulled to the curb and exited the police

cruiser, Officer Dickerson motioned for Miller to stop. Instead of stopping, Miller ran, and

Officer Dickerson pursued him on foot. The officer eventually caught Miller and arrested him.

       {¶ 16} Meanwhile, Officer Craig Stiver of the Dayton Police Department recovered the

gun that killed Renaldo from the front porch of 47 Forest Glen. The gun was identified as a

Ruger .22 caliber pistol. It is a single action gun that requires the shooter to manually cock the
                                                                                           7


hammer before firing. The gun was found with five live bullets and one spent casing.

       {¶ 17} Russell Uptegrove, a forensic pathologist, performed an autopsy on Renaldo’s

body, and testified that the cause of death was a “distant penetrating gunshot wound to the head.”

 Trans. Vol. I. (Oct. 15, 2012), p. 232, ln. 22-23. Specifically, Renaldo was shot just beneath his

right eye. Uptegrove stated that there was no trauma on Renaldo’s hands, which indicates that

there was no physical altercation or struggle prior to death. Based on the gunshot wound,

Uptegrove stated that the shooter was at least 18 to 24 inches away from Renaldo.

       {¶ 18} At the close of trial, Miller objected to the admission of the prior written

statement used to impeach Denise Miller. The trial court overruled the objection on grounds that

it was a properly authenticated prior inconsistent statement. Miller also requested that the lesser

included offenses of Reckless Homicide and Involuntary Manslaughter, with the underlying

offense of Aggravated Menacing, be included in the jury instructions. The trial court found that

there was no evidence to support the lesser included offenses, and denied Miller’s request.

       {¶ 19} After considering all the evidence, the jury found Miller guilty of Felony Murder

as a proximate result of committing Felonious Assault. The jury also concluded that Miller

possessed a firearm while committing the offense. At sentencing, Miller received a prison term

of fifteen years to life for the Felony Murder conviction and three consecutive years for the

firearm specification.

       {¶ 20} Miller now appeals from his conviction.



                         II. Did the Trial Court Err in Failing to Instruct

                              the Jury on Lesser Included Offenses?
                                                                                            8


       {¶ 21} Miller’s First Assignment of Error is as follows:

               The Court Erred When it Denied the Appellant’s Request for Jury

       Instructions on Lesser Included Offenses.

       {¶ 22} Under this assignment of error, Miller argues that the trial court erred in failing to

instruct the jury on the lesser included offenses of Reckless Homicide and Involuntary

Manslaughter with the predicate offense of Aggravated Menacing.

       {¶ 23} “The question of whether a particular offense should be submitted to the finder of

fact as a lesser included offense involves a two-tiered analysis.” (Citation omitted.) State v.

Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6. “The first tier * * * is a

purely legal question, wherein we determine whether one offense is generally a lesser included

offense of the charged offense.” Id., citing State v. Kidder, 32 Ohio St.3d 279, 281, 513 N.E.2d

311 (1987).    “The second tier looks to the evidence in a particular case and determines whether

‘ “ a jury could reasonably find the defendant not guilty of the charged offense, but could convict

the defendant of the lesser included offense.” ’ ” Id., quoting State v. Evans, 122 Ohio St.3d

381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 13, quoting City of Shaker Hts. v. Mosely, 113 Ohio

St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11.

       {¶ 24} “[A] charge on the lesser offense is required ‘only where the evidence presented

at trial would reasonably support both an acquittal of the crime charged and a conviction upon the

lesser included offense.’ ” State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d

242, ¶ 192, quoting State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two

of the syllabus.

       {¶ 25} “The trial court must view the evidence in the light most favorable to the
                                                                                            9


defendant when deciding whether to instruct the jury on a lesser included offense.” Id., citing

State   v.   Campbell,   69   Ohio    St.3d   38,   47–48,    630   N.E.2d    339    (1994).   “The

lesser-included-offense instruction is not warranted every time ‘some evidence’ is presented to

support the lesser offense.” Id., citing State v. Shane, 63 Ohio St.3d 630, 632, 590 N.E.2d 272

(1992). “Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the

greater offense and find the defendant guilty on a lesser included (or inferior degree) offense.’

(Emphasis sic.)” Id., quoting Shane at 632–633.

        {¶ 26} In this case, the first tier of the analysis is not in dispute, because the State

concedes that Involuntary Manslaughter and Reckless Homicide are lesser included offenses of

Murder. See Thomas at 216 (“Involuntary manslaughter * * * is a lesser included offense of

murder * * *”); Trimble at ¶ 191 (“reckless homicide is a lesser included offense of felony

murder”).

        {¶ 27} With respect to the second tier of the analysis, we must determine whether a jury

could reasonably find Miller not guilty of the greater offense of Felony Murder based on the

evidence presented at trial. Felony Murder is codified in R.C. 2903.02(B), which states, “No

person shall cause the death of another as a proximate result of the offender’s committing or

attempting to commit an offense of violence that is a felony of the first or second degree * * *.”

        {¶ 28} The predicate offense of violence to Miller’s Felony-Murder charge is Felonious

Assault, a second degree felony. R.C. 2903.11(D)(1)(a).         Felonious Assault occurs when a

person “knowingly * * * cause[s] or attempt[s] to cause physical harm to another * * * by means

of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2).

        {¶ 29} “A person acts knowingly, regardless of his purpose, when he is aware that his
                                                                                         10


conduct will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.

2901.22(B)

       {¶ 30} Miller contends that the evidence, when viewed in a light most favorable to him,

establishes that he did not “knowingly” cause physical harm to Renaldo. He claims that the jury

could have found that his gun discharged unintentionally when Renaldo and/or Alger tried to take

it from him. Miller also relies on Betty Asamoah’s written statement that Miller yelled, “Shut

the f**k up before I shoot your ass.” He claims that the phrasing of his threat indicates the

shooting was unintentional.

       {¶ 31} The evidence cited by Miller is insufficient to allow the jury to reasonably reject

the greater offense of Felony Murder with the predicate offense of Felonious Assault. The

record establishes that approximately five hours before shooting Renaldo, Miller sent a text

message to his girlfriend requesting money to buy bullets. An hour before the shooting, Miller

sent her a second text message indicating that something was going to happen that night. Thirty

minutes later, Miller sent her a third text message saying that he was “about to do something very

permanent.”    Immediately prior to the shooting, Miller directly commented on his intention to

shoot Renaldo and pointed his fully loaded gun directly at him.      The hammer of the gun was

already cocked back and ready to fire. When Alger Wilkins attempted to grab the gun, Miller

moved out of his way and shot Renaldo. Every eyewitness who testified claimed that there was

no physical altercation or struggle between Miller, Renaldo, and Alger.          Accordingly, the

evidence does not indicate that the gun discharged accidentally due to a struggle.

       {¶ 32} Even when viewing the facts in a light most favorable to Miller, the text
                                                                                             11


messages, Miller’s comments, and his action of loading and cocking the gun, indicate that Miller

was aware that his conduct would probably result in Renaldo being physically harmed.

Furthermore, the evidence demonstrates that it was Miller’s intention to shoot Renaldo, not just

threaten him.

       {¶ 33} Based on the evidence in the record, no reasonable jury could have found Miller

not guilty of the greater offense of Felony Murder, but guilty of the lesser included offense of

Involuntary Manslaughter and/or Reckless Homicide.          Accordingly, the trial court did not err in

failing to instruct the jury on the lesser included offenses.

       {¶ 34} Miller’s First Assignment of Error is overruled.



                III. Did the Trial Court Err in Allowing the Written Statement

                          of Denise Miller to Be Submitted to the Jury?

       {¶ 35} Miller’s Second Assignment of Error is as follows:

                The Court Erred When It Allowed the Written Statement of Denise Miller

       to Go Back to the Jury.

       {¶ 36} Under this assignment of error, Miller contends that the written statement of

Denise Miller should not have been submitted to the jury as substantive evidence, because it was

only used as a prior inconsistent statement to impeach her testimony.

       {¶ 37} In State v. Dearmond, 179 Ohio App.3d 63, 2008-Ohio-5519, 900 N.E.2d 692

(2d Dist.), we stated the following regarding prior inconsistent statements:

                “It is the generally accepted view that a prior inconsistent statement is only

       admissible to impeach the declarant and should not be taken into evidence to
                                                                                        12


       prove the truth of the matter asserted. Ohio has long adhered to this general

       principle. * * * [T]he Ohio Supreme Court has said that ‘ “when taken by surprise

       by the adverse testimony of its own witness, * * * the state may interrogate such

       witness concerning his prior inconsistent * * * statement * * * for the purpose of

       refreshing the recollection of the witness, but not for the purpose of offering

       substantive evidence against the accused.” ’ State v. Dick (1971), 27 Ohio St.2d

       162, 165, 56 O.O.2d 101, 271 N.E.2d 797, 799 (quoting State v. Duffy (1938), 134

       Ohio St. 16, 17, 11 O.O. 383, 15 N.E.2d 535, 536). Indeed, to allow prior

       inconsistent statements to be considered for their truth would ‘allow men to be

       convicted on unsworn testimony of witnesses—a practice which runs counter to

       the notions of fairness on which our legal system is founded.’ Bridges v. Wixon

       (194[5]), 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103.” State v. English,

       Montgomery App. No. 21915, 2007-Ohio-5979, 2007 WL 3309637. Id. at ¶ 26.

       {¶ 38} In this case, the State used Denise Miller’s prior inconsistent statement to

impeach her testimony that she did not see her son shoot Renaldo. The State was permitted to

use her statement solely for witness recollection and subsequent impeachment. The statement

was not admissible as substantive evidence. Accordingly, the trial court erred in submitting the

written statement to the jury during its deliberation.

       {¶ 39} While the trial court erred in submitting the written statement to the jury, we

conclude that the error was harmless. “Error in the admission of evidence is harmless if there is

no reasonable possibility that the evidence may have contributed to the accused's conviction. In

order to hold the error harmless, the court must be able to declare a belief that the error was
                                                                                        13


harmless beyond a reasonable doubt.” (Citations omitted.) State v. Bayless, 48 Ohio St.2d 73,

106, 357 N.E.2d 1035 (1976), vacated on other grounds, Bayless v. Ohio, 438 U.S. 911, 98 S.Ct.

3135, 57 L.Ed.2d 1155 (1978).

       {¶ 40} Admitting the prior inconsistent statement to the jury was harmless error because

the statement is cumulative evidence of the fact that Miller shot Renaldo. All of the evidence

presented at trial establishes that Miller was the shooter. There is no evidence to the contrary.

Had the improper statement not been admitted, the jury would have still concluded that Miller

was the shooter based on all of the other evidence. As a result, the written statement did not

contribute to the conviction. Accordingly, the trial court’s error in submitting the statement to

the jury was harmless beyond a reasonable doubt.

       {¶ 41} For the foregoing reasons, Miller’s Second Assignment of Error is overruled.



                      IV. Was the Appellant’s Conviction Against the

                              Manifest Weight of the Evidence?

       {¶ 42} Miller’s Third Assignment of Error is as follows:

              The Appellant’s Conviction Was Against the Manifest Weight of the

       Evidence.

       {¶ 43} Under this assignment of error, Miller contends that his Felony Murder

conviction was against the manifest weight of the evidence, because the evidence does not

establish that he committed the predicate offense of Felonious Assault. Specifically, Miller

claims that the evidence fails to prove that he knowingly caused physical harm to Renaldo.

       {¶ 44} “When a conviction is challenged on appeal as being against the weight of the
                                                                                           14


evidence, an appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in the

evidence, the trier of fact ‘clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.’ ” State v. Hill, 2d Dist. No.

25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997). “A judgment should be reversed as being against the manifest weight of the evidence

‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 45} After weighing all of the evidence, reasonable inferences, and witness credibility,

we do not find that the jury lost its way and created a manifest miscarriage of justice when it

convicted Miller of Felony Murder with the predicate offense of Felonious Assault. Under the

First Assignment of Error, we already concluded that Miller’s various text messages, comments,

and preparation of the gun by loading it and cocking the hammer, establish that he knowingly

caused physical harm to Renaldo. Additionally, there is no evidence of a physical altercation or

struggle that would have led the jury to believe that the shooting was accidental.   Therefore, this

is not an exceptional case in which the evidence weighs heavily against finding that Miller

committed the predicate offense of Felonious Assault.

       {¶ 46} Miller’s Third Assignment of Error is overruled.



                         V. Was the Evidence Insufficient to Support

                                  the Appellant’s Conviction?

       {¶ 47} Miller’s Fourth Assignment of Error is as follows:
                                                                                         15


               The Evidence Was Insufficient to Support the Appellant’s Conviction.

       {¶ 48} Under this assignment of error, Miller contends that there was insufficient

evidence to prove that he committed Felonious Assault as the predicate offense to Felony

Murder.    “Although sufficiency and manifest weight are different legal concepts, manifest

weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is

supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.”

(Citation omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11.

 As a result, a determination that a conviction is supported by the weight of the evidence will

also be dispositive of the issue of sufficiency.       State v. Roberts, 9th Dist. Lorain No.

96CA006462, 1997 WL 600669, * 2 (Sept. 17, 1997); State v. Braxton, 10th Dist. Franklin

No. 04AP-725, 2005-Ohio-2198, ¶ 15. Because we have already determined that the manifest

weight of the evidence establishes that Miller committed the predicate offense of Felonious

Assault for his Felony Murder charge, the evidence is also sufficient to support Miller’s

conviction.

       {¶ 49} Miller’s Fourth Assignment of Error is overruled.



                                        VI. Conclusion

       {¶ 50} Having overruled Miller’s four assignments of error, we hereby affirm the

judgment of the trial court.

                                         .............

FAIN, P.J., concurs.
HALL, J., concurring:

       {¶ 51} I concur with the analysis and conclusions of my colleagues. I write separately to
                                                                                           16


address the introduction of defendant’s mother’s prior inconsistent written statement, “my son

pulled a gun out and shot him” (T. 461), after she denied seeing her son shoot Renaldo

Woodbury.

       {¶ 52} On appeal the State argued, incorrectly in my view, that mother’s prior statement

was admissible under Evid.R. 801(D)(1)(c) as a statement of “identification of a person soon

after perceiving the person,” which is described as “not hearsay.” I do not believe this statement

was one of identification at all. Mother indicated her son was present on the porch where the

shooting occurred, and she clearly knew who her son was. The statement “my son pulled a gun

out and shot him” is about what her son did, not about his “identity.” Therefore, Evid. R.

801(D)(1)(c) does not apply. Moreover, at trial the State moved to admit the prior written

statement because “[w]e impeached her.” (T. 586). The State also argued it was used to refresh

her memory. There was no mention of Evid.R. 801(D)(1)(c).

       {¶ 53} When a prior inconsistent statement is introduced, in most circumstances it may

be considered solely for evaluating the declarant’s credibility and not as substantive evidence.1

Although that nuance may be lost on many a juror, the better practice is to instruct the jury on the

limited purpose for admitting the evidence. Here, however, the defense did not request a limiting

instruction, which waives any potential error. State v. Grant, 67 Ohio St.3d 465, 472, 620 N.E.2d

50 (1993).

       {¶ 54} Nevertheless, I agree that considering the overwhelming evidence against Miller,

there was no reasonable probability that admission of the prior inconsistent statement contributed

to his conviction. Accordingly, even assuming there was an error, it was harmless beyond

         1
             For exceptions, see Evid.R. 607 and Evid.R. 801(D)(1)(a) and (D)(2).
                                        17


reasonable doubt.

                        .............




Copies mailed to:

Mathias H. Heck
Kirsten A. Brandt
William O. Cass, Jr.
Hon. Dennis J. Adkins
