[Cite as State v. Rieske, 2014-Ohio-3643.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :       C.A. CASE NO.      2013 CA 92

v.                                                     :      T.C. NO.    13CR297

SHAUN A. RIESKE                                        :       (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                             ..........

                                             OPINION

                          Rendered on the       22nd       day of        August      , 2014.

                                             ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Shaun A. Rieske appeals from his conviction and
                                                                                              2

sentence for one count of felonious assault (deadly weapon), in violation of R.C.

2903.11(A)(2), a felony of the second degree. Rieske filed a timely notice of appeal with

this Court on October 28, 2013.

       {¶ 2}    The incident which forms the basis for the instant appeal occurred at

approximately 4:30 a.m. on April 11, 2013, when the victim, Jason Lisch, was attacked just

outside his home by an individual wielding a baseball bat. At the time of the attack, Lisch

resided at 431 Selma Road in Clark County, Ohio. Lisch testified that while he was letting

his dog out, a male wearing a black hoodie and blue jeans approached him and struck him

several times with a baseball bat. The assailant struck Lisch on his arms, legs, and ribs.

Lisch testified that he observed one-half of his assailant’s face during the attack and was able

to identify his attacker as Rieske. Lisch further testified that he had a history with Rieske.

Rieske was friends with the ex-boyfriend of Lisch’s girlfriend, Daniel Blair. Lisch believed

that Daniel Blair had sent Rieske to attack him.

       {¶ 3}    After the attack was over, Rieske ran away. Lisch got up and went inside

his house and called 911. When the police arrived, Lisch identified his attacker as Rieske

and provided a description of him. Rieske was arrested for felonious assault at his mother’s

house after he got off work later that day.

       {¶ 4}    On April 29, 2013, Rieske was indicted for one count of felonious assault.

At his arraignment on May 8, 2013, Rieske pled not guilty to the charged offense. The case

proceeded to jury trial on September 11, 2013, and Rieske was ultimately found guilty of

felonious assault with a deadly weapon. At the sentencing hearing, the trial court ordered

Rieske to serve two years in prison, but stayed execution of his sentence pending the
                                                                                              3

outcome of the instant appeal.

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

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

       {¶ 7}    “THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE

STATE TO CALL AN IMPEACHMENT WITNESS, AND PRESENT IMPEACHMENT

DOCUMENTARY EVIDENCE, DESPITE THAT THE EVIDENCE WAS NOT

DISCLOSED TO DEFENSE COUNSEL UNTIL THE WITNESS WAS CALLED TO

TESTIFY AT TRIAL.”

       {¶ 8}    In his first assignment, Rieske contends that the trial court erred when it

allowed the State to impeach him with evidence that had not been disclosed prior to trial.

Specifically, Rieske argues that the trial court abused its discretion when it permitted the

State to introduce documentary evidence and rebuttal testimony from the intake officer at the

Clark County Jail without first disclosing this evidence during discovery in violation of

Crim. R. 16. The evidence that the State introduced over the objection from defense

counsel established that Rieske was wearing a black hoodie when he was arrested and taken

into custody. As previously stated, Lisch testified that Rieske was wearing a black hoodie

during the attack.

       {¶ 9}    Crim.R. 16 governs discovery in criminal prosecutions. By its terms, the

purpose of Crim.R. 16 is “to provide all parties in a criminal case with the information

necessary for a full and fair adjudication of the facts, to protect the integrity of the justice

system and the rights of defendants, and to protect the well-being of witnesses, victims, and

society at large.” Crim.R. 16(A). The Ohio Supreme Court has stated that the overall
                                                                                              4

objective of the discovery rules is “‘is to remove the element of gamesmanship from a trial’”

and “to prevent surprise and the secreting of evidence favorable to one party.” Lakewood v.

Papadelis, 32 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987), quoting State v. Howard, 56 Ohio

St.2d 328, 333, 383 N.E.2d 912 (1978).

       {¶ 10} Once discovery is initiated by demand of the defendant, the prosecutor is

required to copy or photograph certain “items related to the particular case indictment,

information, or complaint, and which are material to the preparation of a defense, or are

intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or

belong to the defendant, within the possession of, or reasonably available to the state, subject

to the provisions of this rule,” as identified in Crim.R. 16(B).         These items include

“laboratory or hospital reports, books, papers, documents, photographs, tangible objects,

buildings, or places.” Crim.R. 16(B)(3). The parties have a continuing duty to supplement

their disclosures. Crim.R. 16(A).

       {¶ 11} “Sanctions for a Crim.R. 16 discovery violation are within the discretion of

the trial court and should be imposed equally, without regard to the status of the offending

party.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 20. “A

trial court must inquire into the circumstances surrounding a discovery rule violation and,

when deciding whether to impose a sanction, must impose the least severe sanction that is

consistent with the purpose of the rules of discovery.” Lakewood at paragraph two of the

syllabus. The Supreme Court has identified three factors that a trial court should consider

in exercising that discretion when the discovery violation is committed by the State: (1)

whether the failure to disclose was a willful violation of Crim.R. 16, (2) whether
                                                                                       5

foreknowledge of the undisclosed material would have benefitted the accused in the

preparation of a defense, and (3) whether the accused was prejudiced. Darmond at ¶ 35,

citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983).

       {¶ 12} As the Supreme Court of Ohio determined:

              “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

       to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable, rather than decisions that are

       unconscionable or arbitrary.

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

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

       it deciding the issue de novo, would not have found that reasoning process to

       be persuasive, perhaps in view of countervailing reasoning processes that

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

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

       {¶ 13} Rieske chose to testify in his own defense at trial.             During his

cross-examination, Rieske denied that he was wearing a black hoodie when he was arrested

for attacking Lisch. The following exchange occurred between the State and Rieske:

              The State: When you were arrested, you were wearing a black hoodie,

       weren’t you?

              Rieske: No.

              Q: Are you sure about this?
                                                                                            6

               A: Yes, sir.

               ***

               Q: You understand at the jail they list what you come in with, don’t

       they?

               A: I’m sure they do, yes.

               Q: Still gonna go with you weren’t in a black hoodie when they

       arrested you?

               A: I was not in a black hoodie when they arrested me, no.

After Rieske finished testifying, defense counsel requested that a short conference be held

outside the hearing of the jury. The trial court granted defense counsel’s request, and the

jury was removed from the courtroom. At that point, the following exchange occurred

between the State, defense counsel, and the trial court:

               The Court: Court is back on record [in] 13-CR-0297, State versus

       Shaun Rieske. The Court has been informed that the State plans on calling a

       rebuttal witness. [Defense Counsel], you asked to put something on the

       record before that was done.

               Defense Counsel: That’s correct, Your Honor.            I’ve received a

       three-page document from the prosecutor that called “Inmate Property

       Received.” Documents that I’ve not received in discovery. I presume that

       the purpose of this document and the witness who was also not disclosed is to

       show that Mr. Rieske had a black zip-up hoodie when he was booked in the

       jail. This is not rebuttal material. This is case in chief sort of material that I
                                                                                  7

should have had.

        The Court: State wish to respond?

        The State: Yes, Your Honor.       I first became aware late Monday

afternoon that [Rieske] may have been arrested in a black hoodie. I didn’t

get a chance to check that out Monday. I did make a phone call yesterday;

and I can’t tell you what time it was. I talked to the command center person.

 They quickly looked it up on the computer and it was, in fact, the case that

Mr. Rieske was arrested in a black zip-up hoodie, white shirt, and jeans. I

did not disclose that to the Defense. I fully assumed that the Defendant

would own up to that; but he didn’t. Only when he testified, and I wasn’t

even certain he was gonna testify, did it become apparent to me that that was

gonna be a rebuttal issue. What I had prepared for rebuttal, up until today,

was the possibility of putting [Springfield Police Officer] Paul Herald back

on the stand, depending on who took the witness stand. And since Jerry

Blair did not take the witness stand, I sent Paul Herald home or asked him to

stay until I had decided. So today is when I scrambled to get [Springfield

Police Intake-Officer] Mr. Gonzalez available if I needed him.

        The Court: I’m going to allow the rebuttal testimony. I’ll have the

jury brought back in. Is your witness here?

        The State: He’s outside. Judge, to be – I think this will go correctly;

but I also have the jail custodian of records here, Angie Lyons, in case I want

to put the actual records in.
[Cite as State v. Rieske, 2014-Ohio-3643.]
                 Defense Counsel: Well, again, just for the record, the fact that the

        prosecutor learned of it before the trial starts is even more reason to keep it

        out now. This is not rebuttal material. He was aware of it before we started

        this morning, and so I just renew my objection.

                 The Court: So noted.

        {¶ 14} The State argues that Officer Gonzalez was a rebuttal witness since there

was cross-examination of Rieske by the prosecutor questioning whether he was wearing a

black hoodie when he was arrested. “Rebuttal evidence is that which is given ‘to explain,

refute, or disprove new facts introduced by the adverse party.’” State v. Wright, 1st Dist.

Hamilton No. C-080437, 2009-Ohio-5474, at ¶56, citing State v. McNeill, 83 Ohio St.3d

438, 446, 1998-Ohio-293, 700 N.E.2d 596. Lisch testified that at the time of the attack,

Rieske was wearing a black hoodie. We recognize that the State could have offered Officer

Gonzalez’s testimony regarding the black hoodie in its case in chief in order to bolster

Lisch’s identification of Rieske, since he described his assailant as wearing a black hoodie.

However, the State was not required to do so. Although Rieske’s arrest was the same day, it

occurred several hours after the assault, ample time to change his clothes.          We also

recognize the general rule that “[e]vidence admissible in the prosecution’s case-in-chief ***

[cannot] be reserved for rebuttal to avoid the [discovery/disclosure] rule.” State v.

Musselman, 2d Dist. Montgomery No. 22210, 2009-Ohio-424, at 13 (internal citations

omitted). In our view, however, this is not what occurred here since the evidence was

adduced to impeach Rieske’s credibility regarding his contention that he was not wearing a

black hoodie at the time of the arrest.

        {¶ 15} “The criterion for determining whether the State should have provided the
                                                                                                9

name of a witness called for rebuttal is whether the State reasonably should have anticipated

that it was likely to call the witness, whether during its case in chief or in rebuttal.” State v.

Lorraine, 66 Ohio St.3d 414, 423, 613 N.E.2d 212 (1993), citing State v. Howard, 56 Ohio

St.2d 328, 333, 383 N.E.2d 912 (1978); see also State v. Bowshier, 2d Dist. Clark No. 2008

CA 101, 2009-Ohio-6387. In the instant case, the State asserted that it became aware on

Monday, September 9, 2013, two days before the trial began, that Rieske was wearing a

black hoodie when he was arrested. Obviously, the State could not predict whether Rieske

would testify at trial, and it certainly had no reason to believe that he would deny that he was

arrested in a black hoodie on the day of the attack. The State contended that it “assumed

that the Defendant would own up to” wearing a black hoodie at the time he was arrested.

Only after Rieske testified that he was not wearing a black hoodie when he was arrested did

the State move the trial court to allow Officer Gonzalez to testify for impeachment purposes.



       {¶ 16} The question, therefore, is not whether the State should have disclosed this

witness and the intake documentation prior to trial, but rather whether the court abused its

discretion in permitting Officer Gonzalez to testify. Bowshier, at ¶ 70. Here, the court

accepted the prosecutor’s explanation and there is no evidence of bad faith.

       {¶ 17} We note that it is difficult to ascertain how foreknowledge of Officer

Gonzalez’s testimony and the intake document would have benefitted Rieske in the

preparation of his alibi defense.      At the time the evidence was admitted and Officer

Gonzalez permitted to testify, Rieske could have made a motion for a continuance, but failed

to do so.    Although under the circumstances herein, no continuance would have been
                                                                                         10

warranted, as the testimony cannot be characterized as a surprise. Rieske’s defense at trial

was that he was at his boss’ house all night and did not travel to Lisch’s house and attack

him. Rieske’s alibi is not contradicted by Officer Gonzalez’s testimony or the information

contained in the intake sheet. Officer Gonzalez’s testimony was limited to the fact that

Rieske was wearing a black hoodie when he was arrested and booked for the attack on Lisch.

 Neither Officer Gonzalez’s testimony nor the intake sheet had any detrimental effect on the

viability of Rieske’s alibi. Significantly, Rieske cannot claim surprise as he, more than

anyone, should have known the fact that he was arrested in a black hoodie.

        {¶ 18} “‘The purpose of discovery rules is to prevent surprise and the secreting of

evidence favorable to one party.’ Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3. In

other words, a primary goal is to prevent gamesmanship. State v. Howard (1978), 56 Ohio

St.2d 328, 333. The overall purpose of the discovery rules, however, is to produce a fair

trial. Papdelis, 32 Ohio St.3d at 3. Counsel should make every effort to anticipate the

evidence that will be needed at trial and obtain it in a timely manner.” Bowshier, at ¶ 72.

Here we cannot conclude that there was gamesmanship nor surprise. Accordingly, we do

not find any discovery infraction in the rebuttal use of the intake sheet and Officer

Gonzalez’s testimony. Rieske was not denied a fair trial, and the trial court did not abuse

its discretion.

        {¶ 19} Rieske’s first assignment of error is overruled.

        {¶ 20} Rieske’s second assignment of error is as follows:

        {¶ 21} “TRIAL       COURT      IMPROPERLY         ADMITTED       EVIDENCE       OF

APPELLANT’S CONVICTION FOR UNAUTHORIZED USE OF A MOTOR VEHICLE
                                                                                         11

FOR IMPEACHMENT PURPOSES.”

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

permitted the State to introduce evidence of his prior misdemeanor conviction for

unauthorized use of a motor vehicle, in violation of R.C. 2913.03. Specifically, Rieske

asserts that this offense is not a crime of dishonesty, and therefore was not admissible for

impeachment purposes.

       {¶ 23} Evid. R. 609 states in pertinent part:

              (A) For the purpose of attacking the credibility of a witness:

              ***

              (3) notwithstanding Evid. R. 403(A), but subject to Evid. R. 403(B),

       evidence that any witness, including an accused, having been convicted of a

       crime is admissible if the crime involved dishonesty or false statement,

       regardless of the punishment and whether based upon state or federal statute

       or local ordinance.

              (B) Time Limit

              Evidence of a conviction under this rule is not admissible if a period

       of more than ten years has elapsed since the date of the conviction *** .

       {¶ 24} Evid. R. 609 must be read in conjunction with Evid. R. 403(B), which states

that “[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by considerations of undue delay, or needless presentation of cumulative

evidence.”

       {¶ 25} Under Evid. R. 609, a trial court has broad discretion to determine the extent
                                                                                              12

of the admissibility of prior convictions for impeachment purposes. State v. Brown, 100

Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, at ¶ 27. In determining whether prior

convictions should be admitted or whether the probative value of the evidence outweighs the

danger of unfair prejudice, of confusion of the issues or of misleading the jury, the trial court

should consider the following factors: (1) the nature of the crime, (2) recency of the prior

conviction, (3) similarity between the crime for which there was a prior conviction and the

crime charged, (4) importance of the defendant's testimony, and (5) centrality of the

credibility issue. State v. Goney, 87 Ohio App.3d 497, 622 N.E.2d 688 (2d Dist.1993).

       {¶ 26} During the State’s cross-examination of Rieske, the following exchange

occurred:

       The State: How about 2008? Were you convicted of unauthorized use of a motor

vehicle?

       Defense Counsel: I object. That’s not an impeachable offense.

       The State: Listed as a theft offense in the Revised Code.

       The Court: Overruled.

       Rieske: I do not recall. I mean it’s been a long time ago. I don’t recollect.

       Defense Counsel: I would make an objection, Your Honor.                It’s not – it’s a

misdemeanor. It’s not a crime of dishonesty.

       The Court: Approach the bench, please.

       ***

       (Bench conference held out of the hearing of the jury)

       ***
                                                                                          13

       The Court: Unauthorized use of a motor vehicle is a misdemeanor. It is, however, a

theft offense; and from the date I’m told, this has occurred within ten years. So it is

admissible. Do you have any documentation regarding it?

       The State: I didn’t pull it. I thought he would admit to it, but I looked it up in

municipal court.

       Defense Counsel: It’s not a crime of dishonesty.

       The Court: It’s a theft offense which, by definition, is a crime of dishonesty or goes

toward veracity; but it is admissible.

       Defense Counsel: Well, I disagree. So.......

       The Court: You will have more opportunities. Thank you, gentlemen.

       ***

       (Bench conference concluded)

       ***

       The Court: Continue, please.

       ***

       The State: What’s your social security number?

       Rieske: ***-**-****.

       Q: Date of birth?

       A: 06/23/1986.

       Q: Full name?

       A: Shaun Andrew Rieske.

       Q: Now, in 2008 are you saying you do not have that conviction or you just don’t
                                                                                              14

recall?

          Defense Counsel: Object.

          The Court: Overruled.

          Rieske: I do not recall.1

          {¶ 27} R.C. 2913.01(K)(1) defines unauthorized use of a motor vehicle, under R.C.

2913.03, as a theft offense. “Under Ohio law, ‘dishonesty’ * * * has been interpreted to

include theft.” State v. Carlisle, 2d Dist. Montgomery No. 13901, 1994 WL 645989

(November 16, 1994). Thus, evidence of Rieske’s 2008 conviction for unauthorized use of

a motor vehicle was admissible under Evid. R. 609(A)(3) for the purpose of attacking his

credibility. State v. Murley, 2d Dist. Champaign No. 08-CA-26, 2009-Ohio-6393, at ¶ 8.

Evidence of a crime that involves dishonesty is admissible for such a purpose, and theft is

such a crime. Id.

          {¶ 28} We also note that in its final instructions, the trial court properly restricted

the jury’s use of the prior-conviction evidence to considerations of the weight and credibility

they ought to give Rieske’s testimony. Specifically, the trial court gave the following

instruction to the jury:

                 Testimony was introduced that the Defendant was convicted of a prior

          criminal act. This testimony may be considered for the purpose of helping



             1
           Although the State failed to introduce a certified copy of the judgment of
   conviction against Rieske for unauthorized use of a motor vehicle, we note that
   his PSI contains information which establishes that on July 14, 2008, he was
   convicted of said offense in Case No. 08 CRB 2856. The better practice would
   be for the State to have obtained a certified copy of the judgment entry of
   conviction for use at trial for impeachment purposes.
                                                                                              15

       you to test the credibility or weight to be given his testimony. It cannot be

       considered for any other purpose.

       {¶ 29} In rejecting a defendant’s argument that the prosecutor improperly used

prior-conviction evidence, we have previously found that “[the] instruction ensured that the

jury would use the prior convictions solely for testing the credibility of the witness, which is

an acceptable use under Evid.R. 609.” Murley, at ¶ 21, citing State v. Owings, 2d Dist.

Montgomery No. 21429, 2006-Ohio-4281 at ¶77. “The jury,” we said, “is presumed to

follow instructions it is given.” Id. Accordingly, we find that the trial court did not abuse its

discretion when it permitted the State to introduce evidence of Rieske’s prior misdemeanor

conviction for unauthorized use of a motor vehicle, in violation of R.C. 2913.03.

       {¶ 30} Rieske’s second assignment of error is overruled.

       {¶ 31} Rieske’s third assignment of error is as follows:

       {¶ 32} “THE EVIDENCE DID NOT SUPPORT A CONVICTION FOR

FELONIOUS ASSAULT.”

       {¶ 33} In his third assignment, Rieske argues that the trial court erred when it

overruled his Crim. R. 29 motion for acquittal. Rieske also asserts that the jury verdict

finding him guilty of felonious assault was against the manifest weight of the evidence.

       {¶ 34} Crim. R. 29(A) states that a court shall order an entry of judgment of

acquittal if the evidence is insufficient to sustain a conviction for the charged offense.

“Reviewing the denial of a Crim. R. 29 motion therefore requires an appellate court to use

the same standard as is used to review a sufficiency of the evidence claim.” State v. Witcher,

6th Dist. Lucas No. L-06-1039, 2007-Ohio-3960. “In reviewing a claim of insufficient
                                                                                             16

evidence, ‘[t]he relevant inquiry is whether, after reviewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.’ ” (Citations omitted). State v.

Crowley, 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.

       {¶ 35} “A weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶

46. When a conviction is challenged on appeal as being against the manifest weight of the

evidence, “ ‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.’ ” State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 36} In the instant case, the State was required to prove each and every element of

felonious assault with a deadly weapon, pursuant to R.C. 2903.11(A)(2), which states in

pertinent part:

                  (A) No person shall knowingly: (2) [c]ause or attempt to cause

       physical harm to another *** by means of a deadly weapon ***.

       {¶ 37} R.C. 2901.22(B) defines “knowingly” as follows:

                  A person acts knowingly, regardless of his purpose, when he is aware

       that his conduct will probably cause a certain result or will probably be of a
                                                                                            17

       certain nature.

       {¶ 38} “Deadly weapon” is defined in R.C. 2923.11(A) as follows:

               Deadly weapon means any instrument, device, or thing capable of

       inflicting death, and designed or specially adapted for use as a weapon, or

       possessed, carried, or used as a weapon.

       {¶ 39} Initially, we note that Rieske contends that there was insufficient evidence to

convict him of felonious assault, and his Crim. R. 29 motion for acquittal should have been

granted. The argument in Rieske’s third assignment, however, almost exclusively focuses

on his contention that his conviction was against the manifest weight of the evidence.

Specifically, Rieske presented an alibi defense at trial wherein he attempted to establish that

he did not have any contact with Lisch on the morning of April 11, 2013. In fact, Rieske

adduced evidence through his own testimony and that of his employer’s wife, Susan Blair,

that he spent the night at his employer’s residence. Blair testified that when she fell asleep

on the sofa between 11:00 p.m. and 12:00 a.m., Rieske was at her house playing video

games with her husband and brother. The brother is the ex-boyfriend of Lisch’s girlfriend.

Blair testified that when she woke up that morning between 5:30 a.m. and 6:00 a.m., Rieske

was still present at her house. However, Lisch testified that Rieske attacked him with a

baseball bat at approximately 4:30 a.m. outside of his house while he was letting his dog out.

 Thus, at the time of the attack, Blair would have been asleep and unable to account for

Rieske’s whereabouts.

       {¶ 40} Blair further testified that her home is equipped with an alarm system, and it

would have to have been turned off if somebody left the house. Blair also testified that even
                                                                                               18

though Rieske sleeps over at her house often, he does not know the code to alarm system.

Nevertheless, no evidence was adduced at trial that the alarm system had, in fact, been

activated during the period of time in question. Rieske testified that he did not have a

driver’s license, and it would have been impossible for him to have walked to Lisch’s house

and back prior to Blair waking up at 5:30 a.m. However, simply because someone does not

have a driver’s license does not mean that the person cannot drive a motor vehicle.

       {¶ 41} More importantly, Lisch unequivocally testified that Rieske was the

individual who attacked him with a baseball bat outside of his house at 4:30 a.m. Any

disparity in his description of the height and weight of assailant and Reiske’s is minimal.

Lisch testified that Rieske hit him several times with the bat and then ran away. This

conduct constitutes felonious assault. Thus, a review of the record convinces us that the

State’s evidence, taken in its entirety, was sufficient to sustain Rieske’s conviction for

felonious assault with a deadly weapon.         Additionally, Lisch’s testimony alone was

sufficient to overrule a Crim. R. 29 motion.

       {¶ 42} Furthermore, Rieske’s conviction is not against the manifest weight of the

evidence. The credibility of the witnesses and the weight to be given their testimony were

matters for the court to resolve. Although Rieske testified on his own behalf and provided

an alibi for his whereabouts on the morning of April 11, 2013, it was up to the jury to

determine whose testimony to credit. Accordingly, the jury did not lose its way simply

because it chose to believe the evidence provided by the State’s witnesses, including Lisch’s

own testimony. Having reviewed the entire record, we cannot clearly find that the evidence

weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.
[Cite as State v. Rieske, 2014-Ohio-3643.]
        {¶ 43} Rieske’s third assignment of error is overruled.

        {¶ 44} Rieske’s fourth and final assignment of error is as follows:

        {¶ 45} “THE         CUMULATIVE         EFFECT     OF   THE    ERRORS       DEPRIVED

APPELLANT OF HIS DUE PROCESS RIGHTS AND RIGHT TO A FAIR TRIAL.”

        {¶ 46} In regards to Rieske’s cumulative error argument, “separately harmless

errors may violate a defendant’s right to a fair trial when the errors are considered together.

State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52. In order to find

‘cumulative error’ present, we must first find that multiple errors were committed at trial. Id.

at 398, 721 N.E.2d 52. We must then find a reasonable probability that the outcome of the

trial would have been different but for the combination of the separately harmless errors.

State v. Thomas, Clark App. No. 2000-CA-43, 2001-Ohio-1353.” State v. Kelly, 2d Dist.

Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 33. “Where no individual, prejudicial error has

been shown, there can be no cumulative error. State v. Blankenship (1995), 102 Ohio App.3d

534, 557, 657 N.E.2d 559.” State v. Jones, 2d Dist. Montgomery No. 20349,

2005-Ohio-1208, ¶ 66.

        {¶ 47} In light of our foregoing analysis, we find that Rieske has failed to establish

that any errors occurred in the instant case. State v. Moreland, 50 Ohio St.3d 58, 69, 552

N.E.2d 894, 905 (1990). Thus, we fail to see how the absence of error can constitute

cumulative error. Id.

        {¶ 48} Rieske’s fourth and final assignment of error is overruled.

        {¶ 49} All of Rieske’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                             ..........
[Cite as State v. Rieske, 2014-Ohio-3643.]
FROELICH, P.J., concurring:

                                      I. Jail Records Testimony

        {¶ 50}     The evidence regarding what Rieske was wearing when admitted to the jail

not only attacked his credibility; it also was substantive evidence that he was wearing the

same clothing as the assailant was described as wearing. The State was aware of this

inculpatory evidence before the trial, but did not inform the defendant. Rather, when

Rieske testified, it used the evidence both substantively and to imply that he lied about his

clothing so he probably lied about his alibi as well.

        {¶ 51} The jail records, in this situation, constituted “reports from peace officers” in

Crim.R.16(B)(6) and should have been disclosed prior to trial. For example, in State v.

Davis, 10th Franklin Dist. No. 08AP-443, 2009-Ohio-1375, the trial court admitted the

testimony of the county jail record keeper and jail visitation records that had not been

provided to the defendant before trial. The parties and the court agreed that the record

keeper’s name and the documents were subject to Crim. R. 16. Id. ¶ 24. The question was

whether the court appropriately resolved the prosecution’s failure to comply with the

requirement.

        {¶ 52} Citing State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d

1173, at ¶ 131, the appellate court held that to be reversible error, the violation must be

willful and prejudicial to the defense, and that the disclosure prior to trial would have aided

the accused’s defense. Davis, ¶ 25.

        {¶ 53} Rieske knew what he was wearing when arrested, and has not shown how

advanced disclosure would have aided his defense. Hypothetically, he could argue that he

would not have taken the stand, but he was making an alibi defense; or (as suggested at oral
                                                                                            21

argument) that he would have been more explicit in a description of what he was wearing

(which he could have done on redirect). The trial court’s resolution of this issue did not

constitute error.

                               II. Prior Conviction Testimony

        {¶ 54} There is nothing on the record that demonstrates the defendant was ever

convicted of unauthorized use of a vehicle.

        {¶ 55} Rieske said he could not recall such a 2008 conviction; the prosecutor then

adduced the defendant’s date of birth and social security number, but never attempted to tie

this identifying information to any conviction. That is until closing argument when the

prosecutor argued, “He can’t even remember whether he’s been convicted of a certain crime

or not, but this Judge is gonna tell you that theft offense that he owned up to, he remembers

that one and you can use that to determine his credibility.”

        {¶ 56} The defendant, on direct, acknowledged that he had a shoplifting conviction

from Wal-Mart, but the prosecutor’s argument inferred to the jury that it could speculate that

there was at least one additional conviction, when there is nothing on the record that

demonstrates the defendant was ever convicted of unauthorized use of a motor vehicle or

any other offense.

        {¶ 57}      Crim.R. 16(B)(2) requires that the prosecutor provide a copy of any

criminal record of the defendant. We cannot tell from the record on appeal whether this

was provided and perhaps trial counsel did not bring it out at the same time as the shoplifting

charge because counsel believed the unauthorized use charge was otherwise not usable for

impeachment.
[Cite as State v. Rieske, 2014-Ohio-3643.]
          {¶ 58} Given that there was a prior theft conviction and there was no objection to

the court’s instructions, I agree that this assignment is controlled by Evid.R. 609(A)(3) and

403(B) and is not well taken. The remarks of the prosecutor, if error, were harmless beyond

a reasonable doubt.

                                             ..........

HALL, J., concurring:

          {¶ 59} I agree with the reasoning, analysis and result of the majority opinion. I

disagree with paragraph 51 of Judge Froelich’s concurring opinion and write separately to

explain so that silence will not be construed to be acquiescence.

          {¶ 60} The assailant in this felonious assault was described as wearing a black

hoodie. The record reflects that trial began on Wednesday September 11, 2013. On Monday

afternoon, September 9th, the prosecutor learned that the defendant “may have been arrested

in a black hoodie.” (T. ____) “I didn’t get a chance to check that out Monday. I did make a

phone call yesterday [Tuesday September 10th] * * * * They quickly looked it up on the

computer and it was, in fact, the case that Mr. Rieske was arrested in a black zip-up hoodie *

* * *” Id. The State did not introduce the fact that Rieske was arrested in a black hoodie in

their case in chief. They also did not introduce this fact during the defense case either

because when the defendant testified, and the State asked him whether he was arrested

wearing a black hoodie, he specifically denied he was wearing a black hoodie when arrested.

It was thereafter, upon rebuttal, that the State requested, and was allowed, to introduce the

evidence from jail booking records that the defendant was booked into jail wearing a black

hoodie.

          {¶ 61} The result in this case hinges upon the determination that the trial court’s
                                                                                           23

allowance of the introduction of the jail booking records did not constitute reversible error,

either because it was 1) not an abuse of discretion (lead opinion in which I join) or 2) that

the prosecutor’s action was not willful or prejudicial to the defendant (concurring opinion, a

point upon which I agree). Neither of those conclusions requires a determination that the jail

booking records constitute “reports from peace officers” as indicated in paragraph 51 of the

concurring opinion. Moreover, I conclude that routine records maintained by a jail are NOT

“reports from peace officers” as contemplated by Crim. R. 16. Initially, I do not believe that

a non-deputy jail employee is a “peace officer.” See, e.g., R.C. 109.71(A) or 2935.01(B).

Furthermore, in my view “reports from peace officers” is intended to encompass arrest,

incident, accident or investigative type reports typically produced to document those events

and often containing a narrative description of the officer’s activities. Booking records of a

jail, or records of who an inmate has for visitors, or what phone numbers they call, are not

“reports from peace officers.” Those records may qualify as “documents” required to be

provided to the defendant by Crim. R. 16(B) if “intended for use by the prosecuting attorney

as evidence at the trial,” but they are records, not reports.

        {¶ 62} Finally, in evaluating whether the trial court’s admission of the jail booking

records in this case was an abuse of discretion I would emphasize that a trial is often

described as a search for the truth. In this case, when it became apparent that the defendant

lied about a relevant fact, it was abundantly reasonable to allow introduction of previously

un-exchanged documentary evidence directly contrary to his fabrication.

                                           ..........
                          24

Copies mailed to:

Ryan A. Saunders
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Richard J. O’Neill
