STATE OF OHIO v. DEVAN HARRIS
No. 99817
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 26, 2013
[Cite as State v. Harris, 2013-Ohio-5733.]
BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-566964
JUDGMENT: AFFIRMED
Edward M. Heindel
450 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Adrienne E. Linnick
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant Devan Harris appeals his convictions from the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm.
{¶2} A true bill indictment was returned against Harris charging him with two counts of aggravated robbery, two cоunts of felonious assault, kidnapping and having weapons while under disability. With the exception of the having weapons while under disability charge, each count contained one- and three-year firearm specifications. Appellant pled not guilty to the charges and the case proceeded to a jury trial.
{¶3} The facts presented at trial were as follows: On Seрtember 14, 2012, Joseph Christburg was attending a party at a friend‘s home. He left the party around midnight and began traveling to the home of his girlfriend on Alcoy Road. He boarded a bus that took him to a station where he boarded a second bus that took him to Euclid and Alcoy where he disembarked. On both buses and at the bus station, Christburg noticed a male wearing black jeans, a black leather jackеt with checkerboards and a Chicago White Sox baseball hat. On the second bus, the male sat approximately three seats behind Christburg. At Euclid and Alcoy, the male also exited the second bus and began to close the distance on foot between himself and Christburg as they approached Christburg‘s destination on Alcoy.
{¶4} Near the home of Christburg‘s girlfriend, the male called out to Christburg and said something about his phone. Christburg had never seen the man before. The man produced a black handgun, fired once and demanded Christburg give to him his personal belongings. Christburg grabbed the man as he approached and slammed him
{¶5} Cleveland police responded to the scene and discovered the baseball hat. Christburg provided police with a description of the suspect that was broadcast to other officers in the area who then began to search for the assailant in the direction that Christburg had seen the man run. Within five minutes of the broadcast, Harris was discovered by police in an industrial area approximately half a mile from the scene of the crime. Harris was wearing a black and white checkered leather jacket. Harris did not have any weapons on his person and no weapons were recovered in the area.
{¶6} The Ohio Bureau of Criminal Investigation tested the baseball hat that had been recovered from the scene and found a mixture of DNA on the hat. However, the hat had a major profile that was much stronger than the minor profile. This prevalent DNA profile was consistent with the DNA of Harris such that the profile would occur in one in 68 quintillion, 70 quadrillion unrelated people.
{¶7} A gunshot residue test was performed on Harris but only one particle characteristic for gunshot primer residue was discovered on one of his hands. The test was inconclusive because more than one particle would be expected to be found on the hand of a person firing a weapon and the single particle may have come from a secondary transfer rather than the firing of a weapon.
{¶9} Harris moved for acquittal of all charges pursuant to
I. The convictions for aggravated robbery, felonious assault, kidnapping, and having weapons under disability, were against the manifest weight of the evidence, and not supported by sufficient evidence.
{¶10} This court has said that, in evaluating a sufficiency of the evidence
{¶11} Harris does not challenge any particular element of any of the offenses for which he was convicted. His sole argument is that the state did not present sufficient evidence to establish his identity as the shooter. The state did, in fact, present such evidence in the form of Christburg‘s in-court identification of Harris, the discovery of Harris’ DNA on the baseball hat recovered from the scene, Harris’ admission that he was present on the buses where Christburg first took notice of him and Harris’ apprehension just half a mile from the crime scene wearing clothing consistent with the description Christburg provided to police.
{¶12} Harris argues that Christburg‘s in-court identification of him was derived from unnecessarily suggestive procedures that had a likelihood of leading to a misidentification and thus violated his right to due process.
{¶13} Harris did not object to either the in-court identification or the out-of-court identification. Harris’ failure to object to the identification testimony deprived the trial judge of any opportunity to rule on this issue. As a result, Harris has waived all but
{¶14} An identification derived from unnecessarily suggestive procedures, which have a likelihood of leading to a misidentification, violates a defendant‘s right to due process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In determining the admissibility of challenged identification testimony, a reviewing court applies a two-prong test: (1) did the defendant demonstrate that the identification procedure was unduly suggestive; and, if so, (2) whether the identification, viewed under the totality of the circumstances, is reliable despite its suggestive character. State v. Harris, 2d Dist. Montgomery No. 19796, 2004-Ohio-3570, ¶ 19, citing State v. Wills, 120 Ohio App.3d 320, 324, 697 N.E.2d 1072 (8th Dist.1997); State v. Thompson, 8th Dist. Cuyahoga No. 90606, 2009-Ohio-615, ¶ 32; State v. Page, 8th Dist. Cuyahoga No. 84341, 2005-Ohio-1493. If the pretrial confrontation procedure was not unduly suggestive, any remaining questions as to reliability go to the weight of the identification,
{¶15} The Supreme Court has set forth the following factors to consider regarding potential misidentification:
“the opportunity of the witnеss to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation * * *.”
{¶16} The court must review these factors under the totality of the circumstances. Id. Furthermore, “аlthough the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the identification.” Page, citing State v. Merrill, 22 Ohio App.3d 119, 121, 489 N.E.2d 1057 (8th Dist.1984); State v. Moody, 55 Ohio St.2d 64, 67, 377 N.E.2d 1008 (1978).
{¶17} We find no evidence of a suggestive pretrial procedure that gave rise to a faulty in-court identification. Harris’ reliance upon Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), is misplaced. In Foster, the witness could not positively identify the suspect in a lineup. The witness thought the suspect might be the correct man but was not sure. The suspect was brought into a room and placed across a table from the witness who was still uncertain the defendant was the correct man. A week later, the witness was shown a second lineup in which the defendant was the only person who had appeared in the first lineup. After the second lineup, the witness was
{¶18} In this instance, Christburg was shown a single lineup and he chose someone other than Harris. When Christburg later inquired about the matter to police, he was informed that he had selected the wrong man. Christburg testified that he circled the wrong man in the lineup because he was heavily medicated at the time. There is no evidence that the lineup even contained Harris. Presumably, Harris did not object to the introduction of the out-of-court identification because it was helpful to his case and harmful to the credibility of Christburg‘s in-court identification. Harris certainly had an opportunity to challenge Christburg‘s credibility in this manner at trial.
{¶19} Furthermore, the factors identified in Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), weigh against the potential for misidentification in this case. Christburg had ample opportunities to viеw Harris during both bus rides that they shared, their time at the bus station and the eventual confrontation. The testimony at trial established that police obtained a description of the suspect from Christburg including the fact that the suspect was wearing a black jacket with “some sort of white in [it].” Christburg testified at trial that he was 100 percent positive that Harris was the shooter and provided an explanаtion for his inconsistent pretrial identification.
{¶20} Finally, Harris argues that the eyewitness identification procedure used in the pretrial lineup violated
{¶21} We find no plain error in the admission of Christburg‘s identification testimony. Harris’ argument that the state failed to present sufficient evidence of his identity as the shooter is without merit.
{¶22} Harris also argues that his convictions were against the manifest weight of the evidence. A manifest weight challenge questions whether the prosecution met its burden of persuаsion. State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When considering a manifest weight challenge, a reviewing court reviews the entire record, weighs the evidence and all reasonable inferences therefrom, considers the credibility of the witnesses and determines whether the finder of fact clearly lost its way. State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing court may reverse the judgment of conviction if it appears that 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. Id.
{¶23} In light of the evidence presented at trial, particularly Christburg‘s extensive opportunity to view Harris prior to and during the commission of the offenses, Christburg‘s description of the suspect that culminated in Harris’ arrest roughly half a mile away and the DNA evidence linking Harris to thе scene of the crime, we cannot say that the finder of fact clearly lost its way in finding appellant guilty of the above offenses.
{¶25} Harris’ second assignment of error states:
II. The trial court erred when it found Harris competent to stand trial without complying with
R.C. 2945.37(E) .
{¶26} Harris argues that he did not stipulate to a competency report that found him competent to stand trial and that pursuant to
{¶27} Harris was referred for an evaluation of his competency to stand trial. The trial court received the competency report and held a competency hearing. The report found Harris to be cоmpetent to stand trial. The state stipulated to the report at the initial hearing, but the court continued the hearing to allow for Harris’ counsel to further discuss the charges with him. When the court reconvened the hearing on competency, Harris’ counsel noted that he had some reservations about his communication with Harris but admitted that he did not have anything to offer oppоsing the findings of the competency report. The trial court found Harris competent to stand trial and noted, without objection, that Harris had stipulated to the report. We find Harris’ argument to be without merit.
{¶28} Harris’ second assignment of error is overruled.
{¶29} Harris’ third assignment of error states:
III. The trial court erred when it did not require police compliance with
R.C. 2933.83(B) in regards to the out-of-court photo array, and it did not issue a limiting instruction to the jury regarding the non-complianсe.
{¶31} In this assignment of error, Harris further argues that the trial court should have provided a jury instruction pursuant to
{¶32} Under
{¶33}
(3) When evidence of a failure to comply with any of the provisions оf this section, or with any procedure for conducting lineups that has been adopted by a law enforcement agency or criminal justice agency pursuant to
division (B) of this section and that conforms to any provision of divisions (B)(1) to (5) of this section, is presented at trial, the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliаbility of any eyewitness identification resulting from or related to the lineup.
{¶34} In the present instance, we note that Harris did not move to suppress the out-of-court identification, the identification weakened the state‘s case rather than his own and that Harris did not object to the jury instructions or request an instruction pursuant to
{¶35} Harris’ third assignment of error is overruled.
{¶36} Harris’ fourth assignment of error states:
IV. The trial court committed plain error when it failed to provide the jury with a limiting instruction that Harris’ prior conviction for drug possession could be used solely for the purpose of determining whether the state proved the charge of having a weapon under disability, and not as corroborating evidence of his guilt on the other charges.
{¶38} Upon review of the record, we find that Harris has failed to demоnstrate that the trial court‘s failure to, sua sponte, give the jury a limiting instruction affected his substantial rights. The prosecutor did not question the witnesses about the prior conviction and the sole reference to the prior conviction during closing arguments was not inappropriate because it was strictly within the context of the elements of the having weapons while under disability chаrge. So as to further foreclose any confusion regarding the limited purpose of the stipulation, the trial court reiterated the basic components of the stipulated offense within the context of its instructions directly related
{¶39} Harris’ fourth assignment of error is overruled.
{¶40} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. The case is remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR