[Cite as State v. Tomlinson, 2021-Ohio-1301.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 109614 

 v. : 

 

JAMES TOMLINSON, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: April 15, 2021

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-19-637535-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Ryan Bokoch, Assistant Prosecuting 

Attorney, for appellee. 

Allison F. Hibbard; and Friedman & Gilbert, L.L.C., and 

Mary Catherine Corrigan, for appellant. 

LARRY A. JONES, SR., P.J.: 

Defendant-appellant James Tomlinson (“Tomlinson”) appeals his 

convictions that were rendered after a jury trial. For the reasons that follow, we 

affirm. 
Procedural History 

Tomlinson was charged in a 28-count indictment with crimes 

relating to three shootings that occurred in Cleveland, Ohio over an approximate 

four-month period, as well as crimes arising from his arrest and an alleged attempt 

to intimidate victims. 

The first shooting occurred on March 29, 2018, and the charges 

relative to it were as follows: Counts 1 and 2, attempted murder of Carl Willis 

(“Willis”) and Kenneth Dunnican (“Dunnican”), respectively; and Counts 3 and 4, 

felonious assault of Willis and Dunnican, respectively. Counts 1 through 4 

contained one-, three-, and five-year firearm specifications. Tomlinson was also 

charged with Counts 5 and 6, felonious assault of Willis and Dunnican, 

respectively; and Counts 7 and 8, discharge of firearm on or near prohibited 

premises, with Willis and Kenneth Dunnican, respectively, as the victims. Counts 

5 through 8 contained one- and three-year firearm specifications. 

The second shooting occurred on June 10, 2018, and the charges 

relative to that incident were as follows: Counts 9, 10, and 11, attempted murder of 

Willis, Dajah Carter (“Carter”), and Tamara Lee (“Lee”), respectively; and Counts 

12, 13, and 14, felonious assault of Willis, Carter, and Lee, respectively. Counts 9 

through 14 contained one- and three-year firearm specifications. Tomlinson was 

also charged in Counts 15 and 16 with intimidation of crime victim or witness. The 

charges were related to alleged threats he made against Carter and Lee that were 

recorded in jail calls. 
The last shooting occurred on July 30, 2018, and resulted in a single 

charge, Count 17, discharge of firearm on or near prohibited premises, with no 

named victim. The count contained one- and three-year firearm specifications. 

When Tomlinson was arrested, drugs, money, and a cell phone were 

found on his person, and resulted in the following charges: Count 18, trafficking; 

Count 19, drug possession; and Count 20, possessing criminal tools. Counts 18 

through 20 contained forfeiture of money and forfeiture of cell phone 

specifications. 

Tomlinson was further charged in Count 21 with tampering with 

evidence. The charge related to the weapon that was linked to the crimes and 

found hidden in his mother’s house that was searched pursuant to a warrant. The 

remaining counts, Counts 22 through 28, charged having weapons while under 

disability. 

Prior to trial, Tomlinson filed a motion for relief from prejudicial 

joinder and a motion to suppress. A hearing was held on both motions, at the 

conclusion of which they were denied. The matter then proceeded to a jury trial. 

Prior to the jury’s deliberations, the state dismissed Counts 15 and 16, the two 

intimidation counts. The jury found Tomlinson not guilty of Counts 9 and 10, 

attempted murder of Willis and Carter (June 10, 2018 shooting), but found him 

guilty of the remaining counts and specifications. The trial court sentenced 

Tomlinson to a 31-year prison term. 
Factual Background 

The state presented numerous witnesses at trial, consisting of 

several law enforcement officials, a forensic scientist from the Cuyahoga County 

Regional Forensic Science Laboratory, and a forensic firearm and tool-marks 

scientist from the Cuyahoga County Medical Examiner’s Office. None of the 

victims to the crimes testified. The state had subpoenaed victims Carter and Lee 

but they failed to appear. The testimony presented at trial demonstrated the 

following. 

March 29, 2018 Drive-by Shooting 

Sergeant Christopher Mobley (“Sergeant Mobley”), a Cleveland 

police detective in the gang-impact unit, testified that he had been monitoring the 

Instagram accounts of Tomlinson, who goes by the nickname “Whoadie,” and 

another individual named Datuan Whitfield (“Whitfield”). He monitored the 

accounts because of feuds among different neighborhood groups. On the day of 

the March shooting, Sergeant Mobley was viewing a live video on Tomlinson’s 

Instagram account driving in a vehicle and “posting” with firearms. The sergeant 

recorded the video on his phone; it was played for the jury at trial and admitted 

into evidence. 

During the course of the video, Gray Avenue was mentioned. 

Sergeant Mobley was aware that there had recently been a murder on Gray 

Avenue, and he was also aware that Tomlinson and Whitfield were illegally 

possessing the firearms. As such, Sergeant Mobley proceeded to the area and 
advised a unit to respond as well. Just prior to arriving to the area, dispatch 

informed the sergeant that there had been a shooting in the area on East 115th 

Street that intersects with Gray Avenue. 

Members of the gang-impact unit responded to the scene and 

learned that a resident’s home security camera had captured the shooting. The 

police recovered the footage that showed a vehicle driving northbound on East 

115th Street past a parked car and someone in the moving vehicle shooting several 

times into the parked car. 

Two people were shot: Willis and Dunnican. The vehicle in which 

Willis and Dunnican had been in had multiple bullet defects. The police recovered 

14 nine millimeter cartridge casings from the scene, ten of which it was determined 

had been discharged from a specific 9 mm Glock-26 weapon. Sergeant Mobley 

testified that five days after the shooting, Tomlinson stated in a video on his 

Instagram account, registered as “whoadiebackhome,” “we don’t miss bitch. Ask 

Ken bitch.” 

June 10, 2018 Shooting 

The June 10, 2018 shooting happened near a gas station on St. Clair 

Avenue in Cleveland. There were three victims ─ Carter, Lee, and Willis ─ who 

were shot at while they were in a vehicle. After the shooting, Carter and Lee called 

the police and remained on the scene. Cleveland Police officer Orlando Rivera 

(“Officer Rivera”) arrived on the scene and spoke with Carter and Lee; the officer’s 

interaction with them was recorded on his body camera. Carter and Lee told the 
officer that the shooter was “Whoadie.” The officer testified that the two victims 

were “very excited and emotional about what had just happened to them.” At the 

time Carter and Lee identified the shooter, approximately 40 minutes had passed 

since the shooting had occurred. Footage from Officer Rivera’s body camera was 

played for the jury. 

Detectives Donald Kopchak (“Detective Kopchak”) and Kevin 

Warnock (“Detective Warnock”) of the Cleveland Police Department were assigned 

to investigate the June shooting. Like Sergeant Mobley, Detective Kopchak had 

been involved in monitoring Tomlinson’s Instagram account around the time of 

the June shooting. Detective Kopchak testified about one of Tomlinson’s video 

posts around June 10, 2018. 

In the video, Tomlinson was wearing a blue sweatshirt with a gray 

Nike “swoosh” mark. He displayed a weapon that had the same characteristics as a 

Glock 26; the firearm was in Tomlinson’s waistband and Detective Kopchak saw 

that Tomlinson was wearing teal boxer shorts that had a bright yellow waistband. 

The day after the shooting, the detectives obtained surveillance 

video from the gas station. Detective Kopchak reviewed the video and identified 

Tomlinson as the shooter. The surveillance video showed Tomlinson was wearing 

the same sweatshirt and boxer shorts that he had on in the Instagram video. 

Further, Tomlinson was shooting with a weapon that resembled a Glock 26. 

The video also revealed more details about the shooting. It showed 

the third victim, Willis, getting into the vehicle with Carter and Lee, and Tomlinson 
trying to drag Willis out of the vehicle as the vehicle was being driven away. It was 

at that time that the shooting occurred. After the shooting, Tomlinson stayed on 

the scene and appeared to be celebrating. 

July 30, 2018 Shooting 

The final shooting relative to this indictment occurred on the 

evening of July 30, 2018. At that time, the police responded to Colfax Avenue in 

Cleveland after calls from residents of shots fired. The police did not learn much 

that evening, but the following day, a resident called the police to report finding 

cartridge casings in his front yard. Detective William Fein responded to the 

resident’s home and recovered approximately 17 casings from the resident’s yard, 

driveway, and in the street. 

August 10, 2018 Arrest of Tomlinson; Subsequent Jail Calls 

On August 10, 2018, Tomlinson was arrested, pursuant to an arrest 

warrant, at a home on Colfax Avenue, the street where the July 30 shooting had 

occurred. At the time of his arrest, Tomlinson had $760 in cash and drugs on his 

person. 

The police monitored his calls while he was in jail. In one call he 

placed to Monique Woodley (“Woodley”), his mother, he instructed her to find 

something and “get that shit missing.” As a result of that call, the police obtained 

and executed a search warrant for Woodley’s home. During the search, the police 

recovered body armor, a bullet-proof vest, two ammunition magazines, and a 

Glock-26 weapon. 
In November 2019, Tomlinson made several jail calls using other 

inmates’ identification numbers. In some of the calls, Tomlinson discussed the 

possibility of bribing or intimidating Carter and Lee in order to persuade them not 

to testify and to recant their prior statements to the police. The state maintained 

that it became aware of those specific calls on January 13, 2020, which was several 

days after the trial had commenced. Over the defense’s objection, the trial court 

allowed Detective Warnock to testify about the calls. 

Forensic Evidence 

The Glock-26 weapon seized from Woodley’s home had three DNA 

contributors; Tomlinson was the major contributor. After examination of the shell 

casings obtained from all three crime scenes, it was determined that at least four 

firearms were fired between the three scenes, but each scene had at least one shell 

casing that had been fired by the Glock 26 seized from Woodley’s home. 

Assignments of Error 

I. The trial court erred in denying appellant’s motion for relief from 

prejudicial joinder. 

II. The trial court erred in allowing into evidence the body camera 

statements made by the alleged victims who were not present at 

trial, in violation of the Confrontation Clause of the Sixth and 

Fourteenth Amendments to the United States Constitution. 

III. The trial court erred in permitting the state of Ohio to introduce 

jail calls not turned over to the defense counsel until five days into 

trial in violation of Criminal Rule 16(B). 
Law and Analysis 

Motion for Relief from Prejudicial Joinder 

In his first assignment of error, Tomlinson contends that the trial 

court abused its discretion by denying his motion for relief from prejudicial 

joinder. 

Under Crim.R. 8(A), two or more offenses may be charged together 

if the offenses “are of the same or similar character, or are based on the same act or 

transaction, or are based on two or more acts or transactions connected together or 

constituting parts of a common scheme or plan, or are part of a course of criminal 

conduct.” Ohio law favors joinder of offenses that meet the Crim.R. 8(A) 

requirements in a single trial. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 

54 N.E.3d 80, ¶ 59. “Joinder is liberally permitted to conserve judicial resources, 

reduce the chance of incongruous results in successive trials, and diminish 

inconvenience to the witnesses.” State v. Schaim, 65 Ohio St.3d 51, 58, 600 

N.E.2d 661 (1992). 

The state contends that the indicted offenses were of the same or 

similar character because they mostly related to Tomlinson unlawfully firing the 

same Glock-26 weapon at victims, into vehicles, and on or near prohibited 

premises. Further, Willis was a victim in two of the three shootings. And two of 

the three shootings were tied to an apparent social-media feud with another 

neighborhood group. Tomlinson has not challenged the joinder under Crim.R. 
8(A), and we agree with the state that the offenses were of the same or similar 

character. 

However, even if joinder was proper under Crim.R. 8(A), Crim.R. 14 

provides relief from prejudicial joinder. “If it appears that a defendant * * * is 

prejudiced by a joinder of offenses * * * the court shall order an election or 

separate trial of counts * * * or provide such other relief as justice requires.” 

Crim.R. 14. “Severance may be warranted if the trial court finds a serious risk that 

a joint trial would prevent the jury from making a reliable judgment about guilt or 

innocence.” State v. Jackson, 8th Dist. Cuyahoga No. 102394, 2015-Ohio-4274, 

¶ 12, citing United States v. Zafiro, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 

317 (1993). 

A defendant seeking severance must provide the trial court 

“‘sufficient information so that it can weigh the considerations favoring joinder 

against the defendant’s right to a fair trial.’” State v. Hand, 107 Ohio St.3d 378, 

2006-Ohio-18, 840 N.E.2d 151, ¶ 166, quoting State v. Torres, 66 Ohio St.2d 340, 

343, 421 N.E.2d 1288 (1981). The defendant “‘bears the burden of proving 

prejudice and of proving that the trial court abused its discretion in denying 

severance.’” Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 60, 

quoting State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, 

¶ 29. 

If a defendant makes a claim for prejudicial joinder, “[t]he state may 

rebut a defendant’s claim * * * in two ways.” Dean at ¶ 61. First, if the state shows 
that the evidence of each joined offense is “simple and direct” the defendant’s 

claim of prejudice fails. Id. Where the evidence of the joined offenses is 

“uncomplicated,” such that the jury is “capable of segregating the proof” required 

to prove each offense, a defendant is not prejudiced by the joinder. State v. 

Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33. 

The second way the state can refute prejudice is if the state could 

otherwise introduce evidence of the joined offenses at separate trials as “other 

acts” pursuant to Evid.R. 404(B). Dean at id. However, if the state can establish 

that the evidence of each offense is simple and direct, it need not establish that the 

evidence would be otherwise admissible under Evid.R. 404(B). State v. Clipps, 8th 

Dist. Cuyahoga No. 107747, 2019-Ohio-3569, ¶ 45. 

According to Tomlinson, he was prejudiced by the joinder of 

offenses because his defense was restricted because he may have testified had the 

charges been severed. Tomlinson also contends that the evidence was too 

confusing for the jury. 

In regard to Tomlinson’s first contention ─ that he may have 

testified had the charges been severed ─ we note that the burden rested on 

Tomlinson to make: 

a convincing showing that he has both important testimony to give 

concerning one count and strong need to refrain from testifying on 

the other. In making such a showing, it is essential that the defendant 

present enough information ─ regarding the nature of the testimony 

he wishes to give on one count and his reasons for not wishing to 

testify on the other ─ to satisfy the court that the claim of prejudice is 

genuine. 
Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.1968). 

Tomlinson has offered no more than the simple statement that he 

may have testified if the charges had been severed. He did not elaborate on which 

charges he may have testified to. Thus, the record fails to support any claim “that 

he [had] both important testimony to give concerning one [indictment] and strong 

need to refrain from testifying on the other.” Id. We now consider Tomlinson’s 

second contention ─ that the evidence for all the charges was too confusing for the 

jury ─ to which the state rebuts that its evidence was clear and direct and 

presented in a fashion so as not to confuse the jury. 

Evidence is “simple and direct” if (1) the jury is capable of readily 

separating the proof required for each offense, (2) the evidence is unlikely to 

confuse jurors, (3) the evidence is straightforward, and (4) there is little danger 

that the jury would “improperly consider testimony on one offense as 

corroborative of the other.” State v. Wright, 4th Dist. Jackson No. 16CA3, 2017-

Ohio-8702, ¶ 52. Courts have held that evidence of multiple offenses is “simple 

and direct” where, for example, the offenses involved different victims, different 

incidents or factual scenarios, and different witnesses. State v. Dantzler, 10th Dist. 

Franklin Nos. 14AP-907 and 14AP-908, 2015-Ohio-3641, ¶ 23. Thus, as this court 

has stated, “Ohio appellate courts routinely find no prejudicial joinder where the 

evidence is presented in an orderly fashion as to the separate offenses or victims 

without significant overlap or conflation of proof.” State v. Echols, 8th Dist. 
Cuyahoga No. 102504, 2015-Ohio-5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas 

Nos. L-09-1224 and L-09-1225, 2010-Ohio-4202, ¶ 33. 

Upon review, we find that the evidence was simple and direct. For 

the most part, the state presented its witnesses in chronological order. The 

forensic evidence directly linked Tomlinson to the crime scenes and victims. 

Further, other evidence, such as social media posts, also clearly and directly linked 

Tomlinson to the crimes. There is no evidence that the jury was confused; to the 

contrary, the record demonstrates that the jury was able to separate the charges 

and consider them independently, as evidenced by it finding Tomlinson not guilty 

of Counts 9 and 10, attempted murder of Willis and Carter (June 10, 2018 

shooting). 

In light of the above, the first assignment of error is without merit 

and hereby overruled. 

Body-Camera Evidence: Right to Confrontation 

In his second assignment of error, Tomlinson contends that he was 

denied his constitutional right to confrontation because the trial court allowed the 

admission of the police’s body-camera statements of Lee and Carter, who did not 

testify. The state maintained, and the trial court agreed, that the evidence fell 

under the “excited utterance” hearsay exception. 

The Sixth Amendment to the United States Constitution provides in 

relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right 

* * * to be confronted with the witnesses against him [or her].” In Crawford v. 
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States 

Supreme Court held that the Confrontation Clause bars “admission of testimonial 

statements of a witness who did not appear at trial unless he [or she] was 

unavailable to testify, and the defendant had had a prior opportunity for crossexamination.” Id. at 53-54. 

Thus, according to Crawford, the initial analysis to be made in 

determining whether a defendant’s right to confrontation has been violated by the 

admission of out-of-court statements that are not subject to cross-examination “is 

not whether [the statements] are reliable but whether they are testimonial in 

nature.” Toledo v. Sailes, 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543, 

¶ 13 (6th Dist.), citing Crawford at 61. 

Crawford did not precisely define “testimonial,” but listed the 

following examples: (1) ex parte in-court testimony or its functional equivalent, 

such as affidavits and prior testimony that the defendant was unable to crossexamine, or pretrial statements that declarants would reasonably expect to be used 

in a prosecution; (2) extra-judicial statements contained in formal testimonial 

materials such as depositions, prior testimony, or confessions; and (3) statements 

made under circumstances that would lead an objective witness to believe the 

statement would be available for use at a later trial. Id. 

Later, in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 

L.Ed.2d 224 (2006), the Supreme Court further considered the meaning of 

“testimonial” and held that: 
Statements are nontestimonial when made in the course of police 

interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance to 

meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later prosecution. 

Id. at 822. 

To determine whether a statement is testimonial or nontestimonial, 

we inquire “whether a reasonable person in the declarant’s position would 

anticipate his [or her] statement being used against the accused in investigating 

and prosecuting the case.” United States v. Cromer, 389 F.3d 662, 675 (6th 

Cir.2004); see also State v. Stahl, 111 Ohio St.3d 186, 192, 2006-Ohio-5482, 855 

N.E.2d 834, paragraph two of the syllabus. 

Upon review, the body-camera statements were not testimonial. 

They were statements made to law enforcement in the course of responding to an 

emergency situation. The victims had just been shot at and called the police to 

seek protection and medical treatment. 

Although the statements were nontestimonial in nature and not 

subject to the confines of the Confrontation Clause, we must nevertheless proceed 

to determine their admissibility. Crawford, 541 U.S. at 68; State v. Braun, 8th 

Dist. Cuyahoga No. 91131, 2009-Ohio-4875, ¶ 117; State v. McCree, 8th Dist. 

Cuyahoga No. 87951, 2007-Ohio-268, ¶ 57. Pursuant to Ohio v. Roberts, 448 U.S. 

56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), an out-of-court statement may be 

admissible even if the declarant is unavailable for cross-examination if we find that 
the statement falls “within a firmly rooted hearsay exception” or bears adequate 

indicia of reliability. Id. at 66. 

As mentioned, the statements were allowed under the excitedutterance-hearsay exception. An excited utterance is defined as a “statement 

relating to a startling event or condition made while the declarant was under the 

stress of excitement caused by the event or condition.” Evid.R. 803(2). 

For an alleged excited utterance to be admissible, four prerequisites 

must be satisfied: (1) a startling event producing a nervous excitement in the 

declarant, (2) the statement must have been made while still under the stress of 

excitement caused by the event, (3) the statement must relate to the startling 

event, and (4) the declarant must have personally observed the startling event. 

State v. Brown, 112 Ohio App.3d 583, 601, 679 N.E.2d 361 (12th Dist.1996). 

Carter and Lee observed the startling event ─ they were the victims 

of the shooting. Their statement ─ that the shooter was “Whoadie” ─ was related 

to the startling event. And the startling event ─ the shooting ─ produced a nervous 

excitement in Carter and Lee, for which they were still under at the time of their 

identifying Tomlinson as the shooter. Officer Rivera specifically testified that 

Carter and Lee were “very excited and emotional about what had just happened to 

them.” 

 Tomlinson contends that at the time of the body-camera recording, 

the event was no longer startling, as approximately 40 minutes had passed since 

the shooting. Although the passage of time between the event and the declaration 
is relevant, it is not dispositive of the issue. State v. Taylor, 66 Ohio St.3d 295, 

303, 612 N.E.2d 316 (1993). The Ohio Supreme Court has made clear that, to be 

an excited utterance, the statement need not be strictly contemporaneous with the 

startling event. State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d 1234 (1978), 

paragraph one of the syllabus. “‘[E]ach case must be decided on its own 

circumstances, since it is patently futile to attempt to formulate an inelastic rule 

delimiting the time limits within which an oral utterance must be made in order 

that it be termed a spontaneous exclamation.’” Taylor at id., quoting Duncan at 

219-220. Rather, we consider whether the declarant is still under the stress of the 

event or whether the statement was the result of reflective thought. Duncan at id.; 

see also In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 88321, 2007-Ohio-2226 

(finding an excited utterance even though 27 days passed between the event and 

the statement); State v. Dukes 8th Dist. Cuyahoga No. 52604, 1988 Ohio App. 

LEXIS 3466 (Aug. 25, 1988) (finding an excited utterance when the statement was 

made ten days following an incident). Again, here, only 40 minutes had passed 

between the shooting and Carter and Lee’s statements. More importantly, Officer 

Rivera testified that they were “very excited and emotional” as they identified 

Tomlinson as the shooter. 

On this record, the trial court did not abuse its discretion by 

allowing the body-camera statements under the excited-utterances-hearsay 

exception. The second assignment of error is overruled. 
Jail Calls and Crim.R. 16(B) 

In his third assignment of error, Tomlinson contends that the trial 

court abused its discretion by allowing the jail calls of Tomlinson alleging bribing 

or intimidating Carter and Lee. Tomlinson’s complaint relates to the fact that the 

state did not turn the calls over until five days into trial, in violation of the 

discovery mandates of Crim.R. 16. 

A trial court’s admission of evidence is reviewed for abuse of 

discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, 

¶ 79. An abuse of discretion is more than an error of law or judgment; it is a 

finding that the court’s attitude is unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

Importantly, under this standard, an appellate court may not merely substitute its 

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 

619, 621, 614 N.E.2d 748 (1993). 

Reversal for admission of such evidence, however, also requires a 

showing of prejudice. State v. Galloway, 9th Dist. Summit No. 19752, 2001 Ohio 

App. LEXIS 299 (Jan. 31, 2001); Crim.R. 52(A) (harmless error). The charges to 

which this evidence pertained, Counts 15 and 16, witness intimidation, were 

dismissed by the state. As such, Tomlinson cannot show prejudice and cannot 

overcome a finding that the admission was at most harmless error. See Akron v. 

Fowler, 9th Dist. Summit No. 21327, 2003-Ohio-2844, ¶ 7. 

In light of the above, the third assignment of error is overruled. 
Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

convictions having been affirmed, any bail pending is terminated. Case 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. 

 

LARRY A. JONES, SR., PRESIDING JUDGE 

MICHELLE J. SHEEHAN, J., and 

EILEEN T. GALLAGHER, J., CONCUR