[Cite as State v. Jacobs, 2013-Ohio-1502.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 11CA26 

 : 

 vs. : 

 : DECISION AND JUDGMENT 

JIMMIE E. JACOBS, : ENTRY

 : 

 Defendant-Appellant. : RELEASED: 03/28/13 

_____________________________________________________________ 

APPEARANCES:

William R. Gallagher, Arenstein and Gallagher, Cincinnati, Ohio, for 

Appellant. 

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for 

Appellee. 

_____________________________________________________________ 

 

McFarland, P.J. 

{¶1} Appellant, Jimmie Jacobs, appeals the conviction and sentence 

entered against him by the Highland County Court of Common Pleas after a 

jury found him guilty of aggravated burglary and felonious assault, along 

with two firearm specifications. On appeal, Appellant contends that 1) the 

trial court erred in admitting into evidence his statements made after he had 

invoked his right to counsel; 2) the trial court erred in limiting his cross 

examination of the complaining witness thereby denying him his 

constitutional right of confrontation; 3) the trial court erred in refusing to 
Highland App. No. 11CA26 2

permit a witness to testify to his opinion as to truthfulness of a government 

witness thus depriving defendant of his right to a fair trial and compulsory 

process; 4) the trial court erred by refusing to admit evidence of a witness’s 

drug use and mental illness thus depriving defendant of his right to a fair 

trial and compulsory process; 5) the trial court erred in entering judgments 

of conviction and sentences on both felonious assault and aggravated 

burglary in this case as they are allied offenses in violation of R.C. 2941.25 

and the double jeopardy clause prohibitions against multiple punishments; 6) 

the trial court erred in entering consecutive sentences on the gun 

specifications from a single transaction. 

{¶2}With regard to Appellant’s first assignment of error, we conclude 

Appellant knowingly and intelligently waived his rights when he re-initiated 

conversation with law enforcement. As such, the trial court did not err in 

denying Appellant’s motion to suppress, nor did it err in admitting his 

statements into evidence at trial. Thus, Appellant’s first assignment of error 

is overruled. 

{¶3}As to Appellant’s second and fourth assignments of error, 

because we find no abuse of discretion on the part of the trial court in 

excluding the evidence at issue, we find no merit to these assignments of 

error and they are both overruled. Likewise, as to Appellant’s third 
Highland App. No. 11CA26 3

assignment of error, we conclude that the officer’s proffered testimony was 

an impermissible attempt to introduce character evidence via extrinsic 

evidence, which is barred by Evid.R. 404 and 405, and which did not meet 

the requirements for admission under Evid.R. 608(B). Thus, we cannot 

conclude that the trial court erred in excluding this testimony at trial. As 

such, Appellant’s third assignment of error is overruled. 

{¶4}With regard to Appellant’s fifth assignment of error, we have 

concluded that aggravated burglary and felonious assault are allied offenses 

of similar import which should have merged for purposes of sentencing. As 

such, this matter is remanded for resentencing, at which the State must elect 

which offense it wishes to proceed upon for sentencing and conviction. 

Therefore, Appellant’s fifth assignment of error is sustained. Finally, in 

light of our finding that aggravated burglary and felonious assault are allied 

offenses of similar import, and as such that Appellant could only be 

convicted for one of the offenses, the trial court erred in imposing 

consecutive three year sentences for each of Appellant’s firearm 

specifications, under R.C. 2929.14(D)(1)(g). Accordingly, Appellant’s sixth 

assignment of error is sustained and this matter is remanded for resentencing 

with respect to the imposition of the firearm specification. 
Highland App. No. 11CA26 4

{¶5}In light of the foregoing, the decision of the trial court convicting 

and sentencing Appellant for both aggravated burglary and felonious assault, 

is reversed, and this matter is remanded for resentencing. 

FACTS 

 {¶6}On December 15, 2010, Appellant, Jimmie Jacobs, was arrested 

in connection with the shooting of victim, Jonathan Harris, at Harris’ 

apartment located in the back of J&J Automotive in Highland County, Ohio. 

Upon being questioned by Patrolman Jeff Murphy and Detective Ron Priest 

with the Hillsboro Police Department while in an interview room at the 

Highland County Justice Center, Appellant confessed to having entered the 

victim’s residence and shooting him with a .357 chrome revolver.1

 

 {¶7}As a result, on March 1, 2011, Appellant was indicted on 

attempted murder, in violation of R.C. 2923.02(A) and 2903.02(B), 

felonious assault, a second degree felony in violation of R.C. 2903.11(A)(2), 

and aggravated burglary, a first degree felony in violation of R.C. 

2911.11(A)(1). Additionally, Appellant was charged with firearm 

specifications pursuant to R.C. 2941.145 on each charge. Appellant pled not 

guilty to the charges and the matter proceeded to trial. 

 

1

 The video and audio recording system in the interview room was not activated during the interview, 

unbeknownst to the investigating officers. As such, this information comes from testimony of the officers, 

based upon notes they made soon after the interview took place. 
Highland App. No. 11CA26 5

{¶8}Several pre-trial motions were filed, including a motion to 

suppress by the defense and a motion in limine by the State. The trial court 

overruled the defense’s motion to suppress, which sought suppression of the 

statements made by Appellant during his interview with Murphy and Priest 

on the night of the shooting. The trial court, however, granted the State’s 

motion in limine. In particular, the trial court ruled that information 

involving a loan made between Appellant and victim was to be limited, and 

that there was to be no testimony or evidence presented as to how the victim 

used the money. The trial court further ruled that the defense could not offer 

testimony of a Xenia police officer related to a prior incident with the 

victim. 

 {¶9}The matter was tried to a jury on August 31, and September 1, 

2011. The State presented multiple witnesses in support of its case. Of 

importance, the victim, Jonathan Harris, testified that Appellant, a neighbor 

of Harris’, entered Harris’ residence located in the back of J&J Automotive 

on the evening of December 15, 2010. Harris testified that Appellant had a 

gun in his hand, stated he was going to kill Harris, put the gun to his head 

and then pulled the trigger. Mark Puckett, a neighbor who knows both 

Harris and Appellant, testified that he was on the phone with Harris when 

Appellant entered the residence and that he heard Harris call Appellant by 
Highland App. No. 11CA26 6

name and then heard two shots. Further, Brian Holbrook, an employee of 

J&J Automotive, testified that he saw Appellant enter the residence that 

evening as Holbrook was leaving. He further testified that upon returning 

not long after, he found Harris bloody and calling for help, and that he called 

911. 

 {¶10}Patrolman Jeff Murphy and Detective Ron Priest, both with the 

Hillsboro Police Department, testified regarding their interview of Appellant 

at the Highland County Justice Center on the night of the shooting. Both 

men essentially testified that Appellant stated that he had an issue with the 

victim over money he had loaned him. They further testified that Appellant 

stated that he went to the victim’s apartment and shot him with a .357 

chrome revolver. 

 {¶11}Finally, the State presented the testimony of Heather Williams 

and Max Larijani, employed at BCI&I. Larijani., who was qualified as an 

expert in gunshot residue analysis, testified that there was gunshot primer 

residue identified on samples taken from Appellant’s left back hand and the 

palm of his right hand. Williams, who was qualified as an expert in 

bullet/projectile analysis, testified that the evidence she tested indicated the 

bullet fired had come from a .380 auto caliber or greater. She further 

testified that a .357 caliber is greater than a .380 caliber. 
Highland App. No. 11CA26 7

 {¶12}Additionally, the defense proffered one witness and presented 

three, including Appellant himself. Appellant denied having confessed to 

shooting Harris during the interview with law enforcement. Instead, 

Appellant testified that he simply went to Harris’ apartment to confront him 

in response to Harris making a threat against his wife. He testified that he 

took a cane with him, which he used to walk. He further testified that he 

entered Harris’ apartment after knocking and being told to come in. He 

testified that Harris was on the phone with Mark Puckett and that while he 

was still on the phone, Appellant leaned in close in order to be as threatening 

as possible and to tell him that he could not make threats against his wife. 

He further testified that when Harris reached for something behind his back, 

Appellant hit Harris’ hand with his cane, that they both fell down and that he 

then heard one shot. Finally, he testified that he left and went home because 

he was frightened, and that he did not call the police. 

 {¶13}After hearing the evidence, the jury found Appellant guilty of 

aggravated burglary and felonious assault. As such, the attempted murder 

charge was nolled and dismissed, and the trial court sentenced Appellant to 

eight years on each count, as well as three years on each firearm 

specification, all to be served consecutively for a total prison term of twenty-
Highland App. No. 11CA26 8

two years. It is from this judgment and sentence that Appellant now brings 

his timely appeal, assigning the following errors for our review. 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE 

STATEMENTS OF JACOBS AFTER HE HAD INVOKED HIS 

RIGHT TO COUNSEL WHICH VIOLATES HIS RIGHTS 

GUARANTEED HIM BY THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION 

AND ARTICLE ONE OF THE OHIO CONSTITUTION. 

II. THE TRIAL COURT ERRED IN LIMITING DEFENDANT’S 

CROSS EXAMINATION OF THE COMPLAINING WITNESS 

THEREBY DENYING HIM HIS CONSTITUTIONAL RIGHT OF 

CONFRONTATION AS GUARANTEED BY THE OHIO AND 

UNITED STATES CONSTITUTIONS. 

III. THE TRIAL COURT ERRED IN REFUSING TO PERMIT A 

WITNESS TO TESTIFY TO HIS OPINION AS TO 

TRUTHFULNESS OF A GOVERNMENT WITNESS THUS 

DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL 

AND COMPULSORY PROCESS AS GUARANTEED BY THE 

OHIO AND FEDERAL CONSTITUTIONS. 

IV. TRIAL COURT ERRED BY REFUSING TO ADMIT EVIDENCE 

OF A WITNESS’S DRUG USE AND MENTAL ILLNESS THUS 

DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR [SIC] 

AND A COMPULSORY PROCESS AS GUARANTEED BY THE 

OHIO AND UNITED STATES CONSTITUTIONS. 

V. THE TRIAL COURT ERRED IN ENTERING JUDGEMENTS [SIC] 

OF CONVICTION AND SENTENCES ON BOTH FELONIOUS 

ASSAULT AND AGGRAVATED BURGLARY IN THIS CASE AS 

THEY ARE ALLIED OFFENSES IN VIOLATION OF ORC 

2941.25 AND THE DOUBLE JEOPARDY CLAUSE 

PROHIBITIONS AGAINST MULTIPLE PUNISHMENTS SET 

FORTH IN OHIO STATE AND FEDERAL CONSTITUTION [SIC]. 
Highland App. No. 11CA26 9

VI. THE TRIAL COURT ERRED IN ENTERING CONSECUTIVE 

SENTENCES ON THE GUN SPECIFICATIONS FROM A SINGLE 

TRANSACTION.” 

ASSIGNMENT OF ERROR I 

 {¶14}In his first assignment of error, Appellant contends that the trial 

court erred in admitting into evidence statements that he made after he had 

invoked his right to counsel. Appellant essentially argues that the trial court 

erred in denying his pre-trial motion to suppress, and as such, allowing his 

confession to be admitted at trial. Appellant further contends that the issue 

presented is whether the police must stop asking questions beyond booking 

questions once an arrestee requests counsel. The State responds by arguing 

that Appellant initiated the discussion which led to his confession, thereby 

waiving his previously invoked right to counsel and right to remain silent. 

 {¶15} “Appellate review of a motion to suppress presents a mixed 

question of law and fact. When considering a motion to suppress, the trial 

court assumes the role of trier of fact and is therefore in the best position to 

resolve factual questions and evaluate the credibility of witnesses.” State v. 

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; citing 

State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). 

“Consequently, an appellate court must accept the trial court's findings of 

fact if they are supported by competent, credible evidence.” Id., citing State 
Highland App. No. 11CA26 10

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting these facts 

as true, the appellate court must then independently determine, without 

deference to the conclusion of the trial court, whether the facts satisfy the 

applicable legal standard.” Burnside at ¶ 8; citing State v. McNamara, 124 

Ohio App.3d 706, 707 N.E.2d 539 (4th Dist. 1997). See, also, State v. 

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. 

Preliminarily, “[w]here factual issues are involved in determining a motion, 

the court shall state its essential findings on the record.” Crim.R. 12(F). 

{¶16}Prior to initiating a custodial interrogation, law enforcement 

must “inform an accused ‘that he has the right to remain silent, that anything 

he says can be used against him in a court of law, that he has the right to the 

presence of an attorney, and that if he cannot afford an attorney one will be 

appointed for him prior to any questioning if he so desires.’ ” State v. Ulery, 

4th Dist. No. 07CA28, 2008-Ohio-2452, ¶ 7; quoting Miranda v. Arizona, 

384 U.S. 436, 479, 86 S.Ct. 1602 (1966). Neither party in this case argues 

that Appellant was not subject to a custodial interrogation or that there was 

no need to have given him the Miranda warnings. Thus, no further analysis 

is required on this issue. 

{¶17}To use a statement made by the accused during a custodial 

interrogation, the prosecution must show: “(1) the accused, prior to any 
Highland App. No. 11CA26 11

interrogation, was given the Miranda warnings; (2) at the receipt of the 

warnings, or thereafter, the accused made ‘an express statement’ that he 

desired to waive his Miranda constitutional rights; (3) the accused effected a 

voluntary, knowing, and intelligent waiver of those rights.” State v. 

Edwards, 49 Ohio St.2d 31, 38, 358 N.E.2d 1051 (1976) (overruled on other 

grounds), citing Miranda. However, contrary to the second prong in 

Edwards, the Supreme Court recently held that the prosecution “does not 

need to show that a waiver of Miranda rights was express. An ‘implicit 

waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect's 

statement into evidence.” Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct. 

2250, 2261 (2010) (Citation omitted). “Where the prosecution shows that a 

Miranda warning was given and that it was understood by the accused, an 

accused's uncoerced statement establishes an implied waiver of the right to 

remain silent.” Id. at 2262. That is because “the law can presume that an 

individual who, with a full understanding of his or her rights, acts in a 

manner inconsistent with their exercise has made a deliberate choice to 

relinquish the protection those rights afford.” Id. 

{¶18}When dealing with a claim that law enforcement continued to 

interrogate the accused after he invoked his right to counsel, the first 

question is “whether the accused actually invoked his right to counsel.” 
Highland App. No. 11CA26 12

Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490 (1984). “It is fundamental 

that once a suspect invokes his right to counsel, all interrogation must 

cease.” State v. Colquitt, 188 Ohio App.3d 509, 2010-Ohio-2210, 936 

N.E.2d 76, ¶ 12, citing State v. Turvey, 84 Ohio App.3d 724, 732, 618 

N.E.2d 214 (4th Dist. 1992); State v. Jobe, 6th Dist. No. L-07-1413, 2009-

Ohio-4066, ¶ 67. “Invocation of the Miranda right to counsel ‘requires, at a 

minimum, some statement that can reasonably be construed to be an 

expression of a desire for the assistance of an attorney.’ ” Davis v. United 

States, 512 U.S. 452, 459, 114 S.Ct. 2350 (1994); quoting McNeil v. 

Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204 (1991). “But if a suspect 

makes a reference to an attorney that is ambiguous or equivocal in that a 

reasonable officer in light of the circumstances would have understood only 

that the suspect might be invoking the right to counsel, [the Court's] 

precedents do not require the cessation of questioning.” Id. “Rather, the 

suspect must unambiguously request counsel.” Id. As the Supreme Court 

observed, “ ‘a statement either is such an assertion of the right to counsel or 

it is not.’ ” Id., quoting Smith v. Illinois (1984), 469 U.S. 91, 97-98, 105 

S.Ct. 490 (1984). 

{¶19}Second, if we find that the accused did invoke his right to 

counsel, we “may admit his responses to further questioning only on finding 
Highland App. No. 11CA26 13

that he (a) initiated further discussions with the police, and (b) knowingly 

and intelligently waived the right he had invoked.” Smith v. Illinois at 95; 

citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981). “[A]n 

accused * * * having expressed his desire to deal with the police only 

through counsel, is not subject to further interrogation by the authorities 

until counsel has been made available to him, unless the accused himself 

initiates further communication, exchanges, or conversations with the 

police.” Edwards at 484-485; See, also, State v. Van Hook, 39 Ohio St.3d 

256, 530 N.E.2d 883 (1988). “[I]nquiries or statements, by either an accused 

or a police officer, relating to routine incidents of the custodial relationship, 

will not generally ‘initiate’ a conversation in the sense in which that word 

was used in Edwards [v. Arizona].” Oregon v. Bradshaw (1983), 462 U.S. 

1039, 1045, 103 S.Ct. 2830 (1983). Though the Supreme Court declined to 

fully define the term “initiate,” it did note that “a willingness and a desire for 

a generalized discussion about the investigation * * * not merely a necessary 

inquiry arising out of the incidents of the custodial relationship” was 

sufficient to show initiation. Bradshaw at 1045–1046. 

{¶20}Here, the trial court found and it is clear from the record that 

Appellant was advised of his Miranda rights. This issue is not in dispute. 

Further, the fact that Appellant made an unequivocal request for counsel 
Highland App. No. 11CA26 14

upon being Mirandized is not in dispute. At issue, however, is whether 

Appellant subsequently waived his right to counsel and to remain silent after 

initially invoking those rights, by re-initiating conversation with the officers 

regarding the incident. 

{¶21}In the case sub judice, the trial court made explicit findings of 

fact when it denied Appellant's motion to suppress. Specifically, the trial 

court found that Appellant, while in custody and while being read his 

Miranda rights, stated that he wanted the right to have an attorney present 

during questioning. The trial court further found that upon being asked by 

law enforcement for the name and contact information of his attorney, as 

well as the name of anyone that might be available to care for the dogs that 

were left at his residence, Appellant twice mentioned the “neighbors across 

the street,” despite being told that they were not discussing the neighbors 

across the street or the incident. The trial court also found that Appellant 

then stated that the officers could ask him questions but he just might not 

answer them, and that when asked if he wanted to answer questions, he 

nodded his head affirmatively. 

{¶22}Based upon these facts, the trial court determined that “there 

was no interrogation of the Defendant after he invoked his right to counsel 

until the Defendant himself stated they could ask him questions and he 
Highland App. No. 11CA26 15

might answer them and he might not, and after being asked if that meant he 

was willing to answer questions he nodded his head yes.” The trial court 

further found that Appellant knowingly, intelligently, and voluntarily waived 

his right to counsel and against self incrimination, and that to the extent 

Appellant’s version of the conversation differed from that of the officers, 

“the Court has determined that the officers’ version is more credible than 

that of the Defendant.” 

{¶23}After careful review, we conclude that the trial court’s findings 

are supported by the record. After Appellant’s unequivocal invocation of 

the right to counsel, Appellant re-initiated the interrogation by stating that 

the officers could ask him questions, though he might not answer them, and 

by nodding in the affirmative when he was then asked if he wanted to 

answer questions. Thus, we conclude that the interrogation was free to 

continue at that point, which it did, resulting in Appellant confessing to 

entering the victim’s residence with a gun in order to confront him about a 

loan that had not been repaid, and ultimately shooting the victim. This leads 

to the conclusion that Appellant knowingly and intelligently waived his 

rights when he spoke with law enforcement. Thus, the trial court was correct 

to deny Appellant's motion to suppress, and we therefore overrule 

Appellant's first assignment of error. 
Highland App. No. 11CA26 16

ASSIGNMENT OF ERROR II AND IV 

 {¶24}We address Appellant’s second and fourth assignments of error 

in conjunction with one another as they are interrelated. In his second 

assignment of error, Appellant contends that the trial court erred in limiting 

his cross examination of the victim, which he asserts denied him his 

constitutional right of confrontation as guaranteed by the Ohio and United 

States Constitutions. Specifically, Appellant questions whether a cross 

examiner is entitled to challenge a negative response with contradicting 

evidence when a witness denies mental illness or drug abuse. In his fourth 

assignment of error, Appellant contends that the trial court erred by refusing 

to admit evidence of the victim’s drug use and mental illness, thus depriving 

Appellant of his right to a fair trial and compulsory process. Under this 

assignment of error, Appellant questions whether it is error to prevent the 

introduction of evidence contradicting a witness’s denial of drug use and 

mental illness. 

{¶25}In response to Appellant’s second and fourth assignments of 

error, the State contends that the trial court was correct in adhering to its 

earlier ruling on a motion in limine and in limiting the cross examination of 

the victim to those things which were relevant to the crime. Further, the 

State argues that Appellant’s trial counsel did not possess, nor actually 
Highland App. No. 11CA26 17

attempt to admit any extrinsic evidence, and that even if the exclusion of 

such alleged evidence was in error, it was harmless error in light of the 

overwhelming evidence of Appellant’s guilt, specifically, Appellant’s 

confession. 

{¶26} “A trial court has broad discretion in the admission or exclusion 

of evidence, and so long as such discretion is exercised in line with the rules 

of procedure and evidence, its judgment will not be reversed absent a clear 

showing of an abuse of discretion with attendant material prejudice to 

defendant.” State v. Green, 184 Ohio App.3d 406, 2009-Ohio-5199, 921 

N.E.2d 276, ¶ 14 (4th Dist.); citing State v. Powell, 177 Ohio App.3d 825, 

2008-Ohio-4171, 896 N.E.2d 212, ¶ 33 (4th Dist). 

{¶27}Abuse of discretion is more than an error of law or judgment; 

rather, it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 2002-Ohio-796, 

762 N.E.2d 940; State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 

(1980). When an appellate court applies this standard, it can not substitute its 

judgment for that of the trial court. State v. Jeffers, 4th Dist. No. 08CA7, 

2009-Ohio-1672, ¶ 12; In re Jane Doe I, 57 Ohio St.3d 135, 137-138, 566 

N.E.2d 1181 (1991); citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 

N.E.2d 1301 (1990). 
Highland App. No. 11CA26 18

{¶28}In these assignments of error, which we address together, 

Appellant contends that he should have been permitted to impeach the 

victim’s trial testimony stating that he had not used cocaine on the day of the 

shooting, and had not suffered from depression or psychotic episodes prior 

to the shooting. Appellant argues that when the victim denied these 

allegations, he should have been permitted to impeach the victim by 

introducing extrinsic evidence in the form of medical records and deposition 

testimony, which Appellant claims contradicted the victim’s answers given 

at trial. 

{¶29}Appellant submits that the admission of such extrinsic evidence 

was proper under Evid.R. 616(B), “Methods of impeachment,” which 

permits a witness to be impeached either by examination or by extrinsic 

evidence, when attempting to prove a sensory or mental defect with respect 

to the capacity, ability, opportunity to observe, remember or relate. 

However, the trial court more appropriately categorized the attempt to 

introduce this evidence as “character assassination” of the victim, and 

excluded the proffered testimony and evidence. For the following reasons, 

we conclude that the trial court properly exercised its discretion in excluding 

this evidence. 
Highland App. No. 11CA26 19

{¶30}Evid.R. 404 provides that evidence of a witness’s character is 

generally inadmissible. Evid.R. 405 provides that when admissible, inquiry 

is allowable only into “relevant” specific instances of conduct and that proof 

of specific instances of conduct may only be made “[i]n cases in which 

character or a trait of character of a person is an essential element of a 

charge.” More specifically, Evid.R. 404(A)(2) provides, with respect to 

character of the victim, that “[e]vidence of a pertinent trait of character of 

the victim” is admissible. (Emphasis added). Here, however, we find that 

evidence of drug use or prior depression on the part of the victim has no 

pertinence or relevance with regard to whether he was the victim of a 

shooting, and as such, would not have been properly admitted as evidence 

under these rules. 

{¶31}Additionally, Evid.R. 608 governs evidence of character and 

conduct of a witness and provides in (B) that “[s]pecific instances of conduct 

of a witness, for the purpose of attacking or supporting the witness’s 

character for truthfulness, other than conviction of a crime as provided in 

Evid.R. 609, may not be proved by extrinsic evidence.” “ ‘Other than the 

Evid.R. 609 exception for certain criminal convictions, a witness’s 

credibility may not be impeached by extrinsic proof of special instances of 

his conduct; such conduct may inquired into only by the intrinsic means of 
Highland App. No. 11CA26 20

cross-examination within the guidelines set forth in Evid.R. 608(B). 

Criminal activities not resulting in conviction cannot ordinarily form the 

basis for an attack upon a witness’s credibility’ ” State v. Hurt, 2nd Dist. No. 

20155, 2004-Ohio-4266, ¶ 11; citing State v. Skatzes, 2nd Dist. No. 15848, 

2003-Ohio-516, ¶ 183. 

{¶32} “ ‘Furthermore, the answers given in response to questions 

about specific instances of conduct on cross-examination must be accepted 

by the examiner with no further attempt to establish the conduct through 

extrinsic evidence.’ ” State v. Reed, 110 Ohio App.3d 749, 754, 675 N.E.2d 

77 (4th Dist. 1996); citing State v. Gardner, 59 Ohio St.2d 14, 19, 391 

N.E.2d 337 (1979). Thus, we conclude that attempting attack the victim’s 

character by pointing to specific prior conduct through the use of extrinsic 

evidence in the form of medical records would be a prohibited method under 

Evid.R. 608(B). 

{¶33} Finally, Evid.R. 613 governs impeachment by self 

contradiction. Because Appellant does not argue admission was proper 

under this rule, we only address it superficially by simply noting that we 

likewise conclude admission of the evidence at issue would be improper 

under this rule as well. We primarily reach this conclusion based upon 

Evid.R. 613(B)(2)’s requirement that the “subject matter of the statement” 
Highland App. No. 11CA26 21

be a “fact that is of consequence to the determination of the action other than 

the credibility of witness[.]” Here, we do not believe that the victim’s 

credibility or character for truthfulness is a fact of consequence to the 

determination of whether Appellant, by Appellant’s own admission, shot the 

victim. Thus, we find Evid.R. 613 to be as equally inapplicable as Evid.R. 

404, 405 and 608. 

{¶34} In light of the foregoing, we find no abuse of discretion on the 

part of the trial court in excluding the evidence at issue. As such, we cannot 

conclude that Appellant was denied his constitutional rights of 

confrontation, to compulsory process, and to a fair trial. Thus, we find no 

merit to Appellants’ second and fourth assignments of error and therefore, 

they are both overruled. 

ASSIGNMENT OF ERROR III 

 {¶35} In his third assignment of error, Appellant contends that the 

trial court erred in refusing to permit a witness to testify regarding his 

opinion as to truthfulness of the victim, which Appellant claims deprived 

him of his right to a fair trial and compulsory process as guaranteed by the 

Ohio and Federal Constitutions. Specifically, Appellant questions whether a 

witness should have been barred from testifying regarding his opinion as to 

the truthfulness of the victim because of the witness’s status as a police 
Highland App. No. 11CA26 22

officer. The State responds by arguing that the trial court’s exclusion of this 

opinion testimony was proper, and that even if it was in error, such exclusion 

was not prejudicial to Appellant considering that Appellant confessed to 

shooting the victim. 

{¶36}As this assignment of error also deals with the trial court’s 

exclusion of certain evidence at trial, we refer to the standard of review set 

forth under our analysis of Appellant’s second and fourth assignments, with 

a simple reminder that a trial court has broad discretion in the admission or 

exclusion of evidence and a trial court’s judgment will not be reversed 

absent a clear showing of an abuse of that discretion, as well as material 

prejudice to the defendant. See, State v. Green and State v. Powell, supra. 

{¶37}A review of the record reveals that the testimony of Xenia 

police officer, Chris Stutes, was the subject of a pre-trial motion in limine 

filed by the State, which motion was granted by the trial court. During the 

hearing on the motion in limine, defense counsel explained that it sought to 

introduce the officer’s testimony “solely for the purpose of expressing an 

opinion as to whether or not Mr. Harris is an honest person.” Defense 

counsel argued that such testimony was permitted under Evid.R. 608(A), as 

opinion testimony as to the victim’s character, as well as Evid.R. 608(B), 

which deals with specific instances of conduct in regards to evidence of 
Highland App. No. 11CA26 23

character and conduct of a witness. The trial court disagreed, reasoning that 

any opinion offered by the officer would have to be based on specific 

instances of conduct, which cannot be proved by extrinsic evidence under 

Evid.R. 608(B), and that testimony of the officer related to his prior 

involvement with the victim would be prohibited extrinsic evidence. 

{¶38}Defense counsel again attempted to introduce Officer Stutes as a 

witness at trial, arguing at that time that his testimony was permissible under 

Evid.R. 404(A)(2) and 405(A), as “opinion bearing upon the pertinent 

character trait of Jonathan Harris; or engaging in unprovoked acts of 

violence.” The proffered testimony essentially consisted of Officer Stutes 

opinion that the victim, Harris, was untruthful and had engaged in 

unprovoked acts violence, testimony which was primarily based upon an 

incident with law enforcement that occurred in 2005, for which Harris was 

never convicted. The trial court adhered to its prior ruling on the motion in 

limine and excluded the proffered testimony, reasoning that the opinion was 

based upon Harris’ involvement in an incident for which he was never 

convicted, and that the officer might be perceived as an expert, which would 

result in undue prejudice against Harris. 

{¶39}Evid.R. 404, which governs the admission of character 

evidence, provides in pertinent part as follows: 
Highland App. No. 11CA26 24

(A) Character evidence generally. Evidence of a person's 

character or a trait of character is not admissible for the purpose 

of proving action in conformity therewith on a particular 

occasion, subject to the following exceptions: 

* * * 

(2) Character of victim. Evidence of a pertinent trait of 

character of the victim of the crime offered by an accused, or by 

the prosecution to rebut the same, or evidence of a character 

trait of peacefulness of the victim offered by the prosecution in 

a homicide case to rebut evidence that the victim was the first 

aggressor is admissible; however, in prosecutions for rape, 

gross sexual imposition, and prostitution, the exceptions 

provided by statute enacted by the General Assembly are 

applicable. 

Further, Evid.R. 405 governs methods of proving character and provides as 

follows: 

(A) Reputation or opinion 

In all cases in which evidence of character or a trait of character 

of a person is admissible, proof may be made by testimony as to 

reputation or by testimony in the form of an opinion. On cross-
Highland App. No. 11CA26 25

examination, inquiry is allowable into relevant specific 

instances of conduct. 

(B) Specific instances of conduct 

In cases in which character or a trait of character of a person is 

an essential element of a charge, claim, or defense, proof may 

also be made of specific instances of his conduct. 

{¶40} Thus, Evid.R. 404(A) generally limits evidence of a person’s 

character, or certain character traits, subject to certain exceptions. In 

particular, with respect to the character of a victim, Evid.R. 404(A)(2) 

permits evidence of “a pertinent trait of character of the victim * * *” 

Here, we find that even if the victim had a character trait of “engaging in 

unprovoked acts of violence,” as argued by the defense, such trait fails to be 

“pertinent” or “relevant” in the absence of a self-defense argument on the 

part of the defendant. Of importance, defense counsel conceded prior to 

instructions being provided that the evidence did not support a jury 

instruction on self defense. State v. Depew, 4th Dist. No. 00CA2562, 2002-

Ohio-6158, ¶ 48 (evidence submitted for the purpose of proving self defense 

was rendered irrelevant where self defense was not at issue); State v. White, 

4th Dist. No. 03CA2926, 2004-Ohio-6005, ¶ 72 (“* * * evidence that is not 

relevant is not admissible.” ); citing Evid.R. 402. 
Highland App. No. 11CA26 26

{¶41}We now turn our attention to Appellant’s argument that this 

evidence should have been admitted under Evid.R. 608, which provides as 

follows: 

“(A) Opinion and reputation evidence of character 

The credibility of a witness may be attacked or supported by 

evidence in the form of opinion or reputation, but subject to 

these limitations: (1) the evidence may refer only to character 

for truthfulness or untruthfulness, and (2) evidence of truthful 

character is admissible only after the character of the witness 

for truthfulness has been attacked by opinion or reputation 

evidence or otherwise. 

(B) Specific instances of conduct 

Specific instances of the conduct of a witness, for the purpose 

of attacking or supporting the witness's character for 

truthfulness, other than conviction of crime as provided in Evid. 

R. 609, may not be proved by extrinsic evidence. They may, 

however, in the discretion of the court, if clearly probative of 

truthfulness or untruthfulness, be inquired into on crossexamination of the witness (1) concerning the witness's 

character for truthfulness or untruthfulness, or (2) concerning 
Highland App. No. 11CA26 27

the character for truthfulness or untruthfulness of another 

witness as to which character the witness being cross-examined 

has testified. * * *” 

The trial court concluded, and rightfully so, that the officer’s proffered 

“opinion testimony” was essentially based upon a specific instance of 

conduct of the victim that occurred several years prior, an incident for which 

Appellant was never convicted. The trial court further concluded that the 

officer’s testimony would have constituted “extrinsic evidence,” which, 

except for evidence of actual convictions, is barred by Evid.R. 608(B). 

 {¶42}After reviewing the record, we agree with the trial court’s 

conclusions and therefore find no abuse of discretion in the exclusion of this 

evidence. Further, and as set forth above, we must be mindful that Evid.R. 

401 defines “relevant evidence” as “evidence having any tendency to make 

the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the 

evidence.” We cannot conclude that a victim’s alleged character of 

untruthfulness, or character trait for “engaging in unprovoked acts of 

violence,” is even relevant, bearing in mind the absence of a self defense 

argument on the part of Appellant. As such, and in light of our conclusion 
Highland App. No. 11CA26 28

that the trial court did not abuse its discretion in excluding Officer Stutes’ 

testimony, Appellant’s third assignment of error is overruled. 

ASSIGNMENT OF ERROR V 

 {¶43}In his fifth assignment of error, Appellant contends that the trial 

court erred in entering judgments of conviction and sentences on both 

felonious assault and aggravated burglary in violation of R.C. 2941.25 and 

the double jeopardy clause, claiming that they are allied offenses of similar 

import. The State contends that aggravated burglary and felonious assault 

are not allied offenses and as such did not merge for purposes of sentencing. 

{¶44}When determining whether multiple offenses should have 

merged under R.C. 2941.25, “[o]ur standard of review is de novo.” State v. 

Buckta, 4th Dist. No. 96 CA 3, 1996 WL 668852 (Nov. 12, 1996); See, also, 

Coleman v. Davis, 4th Dist. No. 10CA5, 2011-Ohio-506, ¶ 16 (“ ‘We review 

questions of law de novo.’ ”); quoting State v. Elkins, 4th Dist. No. 07CA1, 

2008-Ohio-674, ¶ 12, quoting Cuyahoga Cty. Bd. of Commrs. v. State, 112 

Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23. 

R.C. 2941.25 provides: 

“(A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the 
Highland App. No. 11CA26 29

indictment or information may contain counts for all such 

offenses, but the defendant may be convicted of only one. 

“(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in 

two or more offenses of the same or similar kind committed 

separately or with a separate animus as to each, the indictment 

or information may contain counts for all such offenses, and the 

defendant may be convicted of all of them.” 

{¶45} As the Supreme Court recently explained in State v. Johnson, 

128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, under R.C. 

2941.25, “the court must determine prior to sentencing whether the offenses 

were committed by the same conduct.” Johnson at ¶ 47. The initial question 

“is whether it is possible to commit one offense and commit the other with 

the same conduct, not whether it is possible to commit one without

committing the other.” Johnson at ¶ 48 (Emphasis added). “If the offenses 

correspond to such a degree that the conduct of the defendant constituting 

commission of one offense constitutes commission of the other, then the 

offenses are of similar import.” Id. Next, if the answer to the first question 

is yes, we must then look to the facts of the case and determine whether the 

two offenses actually were committed by the same conduct, “i.e., ‘a single 
Highland App. No. 11CA26 30

act, committed with a single state of mind.’ ” Johnson at ¶ 49; quoting State 

v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. “If 

the answer to both questions is yes, then the offenses are allied offenses of 

similar import and will be merged.” Johnson at ¶ 50. 

{¶46} “Conversely, if the court determines that the commission of one 

offense will never result in the commission of the other, or if the offenses are 

committed separately, or if the defendant has separate animus for each 

offense, then, according to R .C. 2941.25(B), the offenses will not merge.” 

Johnson at ¶ 51 (Emphasis added). 

{¶47}Here, Appellant was convicted of aggravated burglary, a first 

degree felony in violation of R.C. 2911.11(A)(1), and felonious assault, a 

second degree felony in violation of 2903.11(A)(2), each with R.C. 

2941.145 firearm specifications. R.C. 2911.11, which defines aggravated 

burglary, provides in pertinent part as follows: 

“(A) No person, by force, stealth, or deception, shall trespass in 

an occupied structure or in a separately secured or separately 

occupied portion of an occupied structure, when another person 

other than an accomplice of the offender is present, with 

purpose to commit in the structure or in the separately secured 
Highland App. No. 11CA26 31

or separately occupied portion of the structure any criminal 

offense, if any of the following apply: 

(1) The offender inflicts, or attempts or threatens to inflict 

physical harm on another;” 

R.C. 2903.11(A)(2), which defines felonious assault, provides in pertinent 

part as follows: 

“(A) No person shall knowingly do either of the following: 

* * * 

(2) Cause or attempt to cause physical harm to another or to 

another's unborn by means of a deadly weapon or dangerous 

ordnance.” 

 {¶48}Ohio cases have consistently held that aggravated burglary and 

felonious assault are not allied offenses of similar import. State v. Barker, 

183 Ohio App.3d 414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 18 (2nd Dist); 

citing State v. Johnson, 5th Dist. No. 06CAA070050, 2006-Ohio-4994; State 

v. Jackson, 21 Ohio App.3d 157, 487 N.E.2d 585 (8th Dist. 1985); State v. 

Feathers, 11th Dist. No. 2005-P-0039, 2007-Ohio-3024; see also, State v. 

Carter, 8th Dist. No. 61502, 1993 WL 7700 (January 14, 1993). However, 

these cases and the reasoning applied therein pre-date the Supreme Court of 

Ohio’s test recently announced in State v. Johnson, supra. 
Highland App. No. 11CA26 32

 {¶49} More recently, however, we have held that a defendant could 

commit aggravated robbery and felony murder with the same conduct. See 

State v. Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 32; State v. Abdi, 

4th Dist. No. 09CA35, 2011-Ohio-3550, ¶ 39. By extension, we have also 

reasoned that aggravated burglary and aggravated (felony) murder are 

offenses of similar import under R.C. 2941.25(A). State v. Williams, 4th

Dist. No. 10CA3381, 2012-Ohio-6083, ¶ 50. Thus, in considering our prior 

reasoning that aggravated burglary and aggravated murder may be 

committed with the same conduct under State v. Johnson, certainly 

aggravated burglary and felonious assault may be committed by the same 

conduct as well. 

 {¶50} Based upon the record before us, it appears that the aggravated 

burglary was committed with the same animus as the felonious assault. 

Appellant was convicted of breaking into the victim’s residence and 

inflicting physical harm on him by shooting him in the face two times, thus 

completing the aggravated burglary. State v. Lacavera, 8th Dist. No. 96242, 

2012-Ohio-800, ¶ 46. A review of the record before us reveals that these 

events all occurred as part of the same transaction, and thus were committed 

with the same animus. Id. See also, State v. Ragland, 5th Dist. No. 

2010CA00023, 2011-Ohio-2245, ¶ 80 (implicitly finding without expressly 
Highland App. No. 11CA26 33

stating that, under the Johnson test it is possible to commit aggravated 

burglary and felonious assault with the same conduct, but ultimately 

determining the two were not allied offenses as they were committed 

separately and with a separate animus). 

{¶51} As such, we conclude that the crimes of aggravated burglary 

and felonious assault are allied offenses of similar import. Thus, Appellant 

may be found guilty of both, but only convicted and sentenced for one. 

State v. Swiergosz, 6th Dist. App. No. l-10-1013, l-10-1052, 2012-Ohio-830, 

¶ (“The statutory mandate that only one ‘conviction’ result from allied 

offenses is a restriction ‘against sentencing a defendant for more than one 

allied offense.’ (Emphasis added) State v. Whitfield, 124 Ohio St.3d 319, 

2010-Ohio-2, 922 N.E.2d 182, ¶ 29)”); R.C. 2941.25(A). Therefore, this 

matter must be remanded for resentencing. At the sentencing hearing, the 

State must elect which allied offense it will pursue for purposes of 

sentencing and conviction. Lacavera at ¶ 47; citing State v. Whitfield, 124 

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25. Accordingly, 

Appellant’s fifth assignment of error is sustained and the decision of the trial 

court convicting and sentencing Appellant for both of these offenses is 

reversed. 
Highland App. No. 11CA26 34

ASSIGNMENT OF ERROR VI 

 {¶52} In his sixth assignment of error, Appellant contends that the 

trial court erred in entering consecutive sentences on the firearm 

specifications from a single transaction. The State counters by arguing that 

the trial court was correct in sentencing Appellant to consecutive firearm 

specifications, which it contends was required under R.C. 2929.14(D)(1)(g). 

However, based upon our disposition of Appellant’s fifth assignment of 

error, which concluded that aggravated burglary and felonious assault are 

allied offenses of similar import for which the State could only obtain one 

sentence and conviction, we agree with Appellant. 

{¶53} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, the Supreme Court of Ohio announced the standard for 

appellate review of felony sentences. We must employ a two-step analysis. 

First, we must “examine the sentencing court's compliance with all 

applicable rules and statutes in imposing the sentence to determine whether 

the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If 

the sentence is not clearly and convincingly contrary to law, we review it for 

an abuse of discretion. Id. 

{¶54} Appellant complains that the trial court’s imposition of 

consecutive sentences for the two firearm specifications was contrary to law. 
Highland App. No. 11CA26 35

The State responds by directing our attention to the version of R.C. 2929.14 

that was in effect at the time Appellant committed his crimes, with an 

effective date of April 7, 2009, which provides in section (D)(1)(g) as 

follows: 

“If an offender is convicted of or pleads guilty to two or more 

felonies, if one or more of those felonies is aggravated murder, 

murder, attempted aggravated murder, attempted murder, 

aggravated robbery, felonious assault, or rape, and if the 

offender is convicted of or pleads guilty to a specification of the 

type described under division (D)(1)(a) of this section in 

connection with two or more of the felonies, the sentencing 

court shall impose on the offender the prison term specified 

under division (D)(1)(a) of this section for each of the two most 

serious specifications of which the offender is convicted or to 

which the offender pleads guilty and, in its discretion, also may 

impose on the offender the prison term specified under that 

division for any or all of the remaining specifications.” 

(Emphasis added). 

The specifications described in 2929.14(D)(1)(a) include 2941.145 

specifications, which are the types of firearm specifications Appellant was 
Highland App. No. 11CA26 36

sentenced on relating to the aggravated burglary, as well as the felonious 

assault charges. Further, R.C. 2929.14(D)(1)(a)(ii) states that the prison 

term for R.C. 2941.145 specifications is three years. 

 {¶55} Here, although Appellant was found guilty of two felony 

offenses, one of which was felonious assault, we have determined that those 

offenses were allied offenses of similar import. As such, Appellant can only 

be “convicted” of one of the offenses. “Where the same conduct by 

defendant can be construed to constitute two or more allied offenses of 

similar import, the indictment or information may contain counts for all such 

offenses, but the defendant may be convicted of only one.” R.C. 

2941.25(A); State v. Swiergosz, supra, at ¶42. Further, in order to correctly 

apply R.C. 2929.14(D)(1)(g), which specifies that an offender must be 

“convicted” or have plead guilty to two or more felonies, we must recognize 

that “[u]nder R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the 

imposition of a sentence or penalty.” Swiergosz at ¶ 43; citing Whitfield at ¶ 

12. Because Appellant cannot be convicted of both aggravated burglary and 

felonious assault, he does not fall under the purview of R.C. 

2929.14(D)(1)(g), which requires convictions for two felonies. Thus, the 

trial court’s imposition of two three-year firearms terms was contrary to law. 

Accordingly, Appellant’s sixth assignment of error is sustained. As a result, 
Highland App. No. 11CA26 37

the trial court’s decision in this regard is also reversed, and the matter is 

remanded for resentencing in accordance with our instructions under 

Appellant’s fifth assignment of error. 

 JUDGMENT REVERSED AND REMANDED. 
Highland App. No. 11CA26 38

Harsha, J., concurring: 

 {¶56} I concur in judgment and opinion on the first and sixth 

assignments of error. However, I concur in judgment only on the remaining 

assignments of error. 

{¶57} On the second assignment of error I conclude both the trial 

court and our opinion mischaracterizes the nature of the impeachment 

evidence offered by the appellant. I agree with Jacobs’ assertion that 

evidence of the victim’s drug use and mental illness are probative of the 

victim’s capacity to observe, remember or relate in events. Thus, they 

should have been admitted under Evid.R. 616(B), which expressly permits 

the use of extrinsic evidence to challenge the witness’s credibility on those 

bases. 

{¶58} It was also error under the fourth assignment of error to 

prohibit the appellant from attacking the victim’s character for truthfulness 

under Evid.R. 404(A)(3), which allows an opponent to impeach a witness’s 

credibility. A witness’s character trait for veracity is always relevant to 

determine credibility. See Evid.R. 404(A)(3), staff note. 

 {¶59} Likewise, I conclude under the third and fourth assignments of 

error that the trial court erred in refusing to admit the opinion testimony 
Highland App. No. 11CA26 39

concerning the victim’s character for truthfulness. See Evid.R. 404(A)(3), 

Evid.R. 405(A) (the method of proving character – by opinion) and Evid.R. 

608(A) (evidence of character of a witness by opinion). 

 {¶60} However, based upon the admission of the appellant’s 

confession and the evidence that corroborates the victim’s testimony, I find 

the errors in assignments of error two, three, and four to be harmless beyond 

a reasonable doubt. See, Chapman v. California (1967), 386 U.S. 18, 24, 87 

S.Ct. 824, 17 L.E.2d 705. 

 {¶61} Moving to the fifth assignment of error, I agree the offenses are 

“of similar import.” But, I would remand to the trial court to determine if 

they were “committed by the same conduct”, i.e. a single act, committed 

with a single state of mind. See State v. Williams, Scioto App. No. 

10CA3381, 2012-Ohio-6083, ¶¶ 45-46. 
Highland App. No. 11CA26 40

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE REVERSED AND CAUSE REMANDED 

and that the Appellant recover of Appellee 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 Highland 

County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it 

is temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of 

the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Exceptions. 

Abele, J: Concurs in Judgment and Opinion. 

Harsha, J.: Concurs in Judgment and Opinion as to Assignments of Error I & VI; 

 Concurs in Judgment Only with Opinion as to Assignments of Error II, III, 

 IV, & V. 

 For the Court, 

 BY: _________________________ 

 Matthew W. McFarland 

 Presiding Judge 

 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing with 

the clerk.