[Cite as State v. Messenger, 2010-Ohio-479.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-09-19 

 v. 

RYAN MESSENGER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 08-CR-491 

Judgment Affirmed 

Date of Decision: February 16, 2010 

 

APPEARANCES: 

Kevin P. Collins for Appellant 

Brent W. Yager for Appellee 
Case No. 9-09-19 

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PRESTON, P.J. 

{¶1} Defendant-appellant, Ryan Messenger1

 (hereinafter “Messenger”), 

appeals the Marion County Court of Common Pleas’ judgment of conviction and 

sentence. For the reasons that follow, we affirm. 

{¶2} On November 26, 2008, Messenger was indicted on count one of 

weapons under a disability in violation of R.C. 2923.13(A)(2), a third degree 

felony, and count two of domestic violence in violation of R.C. 2919.25(A), a first 

degree misdemeanor. (Doc. No. 1). On December 1, 2008, Messenger was 

arraigned and entered pleas of not guilty to both counts. (Doc. No. 3). 

{¶3} On December 23, 2008, the State filed a supplemental indictment 

charging Messenger with count three, a one-year firearm specification as to count 

one. (Doc. No. 11). On December 29, 2008, Messenger appeared pro se, was 

arraigned, and entered a plea of not guilty to count three of the amended 

indictment. (Doc. No. 13). 

{¶4} On March 10, 2009, Messenger, pro se, filed a motion to suppress a 

four-page handwritten letter he had written to Keith Mabe, which was found at 

Mabe’s residence, and an excerpt from Patrolman Isom’s incident report. (Doc. 

No. 43). 

 

1

 We note that Messenger represented himself throughout the proceedings below. Messenger filed a 

written waiver of counsel pursuant to Crim.R. 44(C) on January 16, 2009 for the trial court proceedings. 

(Doc. No. 21). Messenger is represented by counsel on appeal, and this Court also allowed Messenger to 

file a supplemental pro se brief. 
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{¶5} On March 19, 2009, the State filed a supplemental indictment 

charging Messenger with count three of theft in violation of R.C. 2913.02(A)(1), a 

third degree felony and count four of having weapons while under disability in 

violation of R.C. 2923.13(A)(2), a third degree felony. (Doc. No. 63).2

 

{¶6} On March 20, 2009, the court held a hearing on Messenger’s motion 

to suppress evidence, and, on March 23, 2009, the trial court filed its entry 

denying the motion. (Doc. Nos. 51, 71). At the conclusion of the motion hearing, 

the State moved to dismiss count three of the supplemental indictment filed 

December 23, 2008, a one-year firearm specification as to count one, which 

motion was granted by the trial court. (Doc. No. 70). 

{¶7} On April 2-3, 2009, the matter proceeded to a jury trial. The jury 

found Messenger guilty on count one of having weapons while under a disability 

and count two of domestic violence but not guilty on count three of theft. (Doc. 

Nos. 93-95). 

{¶8} On April 8, 2009, the trial court sentenced Messenger to five (5) 

years imprisonment on count one and one hundred eighty (180) days on count two. 

(Apr. 8, 2009 Sentencing Hearing Tr. at 451); (Apr. 9, 2009 JE, Doc. No. 98). 

 

2

 At a final motion hearing held April 1, 2009, the day before the trial, the State moved to dismiss count 

one of the originally filed indictment and replace it with count four of the supplemental indictment filed 

March 19, 2009. These counts were substantively the same, charging Messenger with having weapons 

while under disability; however, the supplemental indictment added the mental culpability standard of 

recklessness. (Apr. 1, 2009 Tr. at 80-81). Messenger agreed to this substitution. (See id.). 
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The trial court further ordered that these terms be served concurrently to each 

other. (Id.). 

{¶9} On May 7, 2009, the trial court appointed appellate counsel, and 

Messenger filed his notice of appeal. (Doc. Nos. 101, 103). Messenger now 

appeals raising twelve assignments of error for our review. We elect to address 

some of Messenger’s assignments of error out of the order they appear in his brief 

and to combine his assignments of error where appropriate. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY DENYING HIS MOTION TO 

SUPPRESS HIS LETTER TO KEITH MABE. 

{¶10} In his first assignment of error, Messenger argues that the trial court 

erred by denying his motion to suppress his letter to Keith Mabe. Specifically, 

Messenger asserts that he had capacity to challenge the search of Mabe’s residence 

since he was an overnight guest. Alternatively, Messenger argues that Mabe never 

voluntarily consented to the search of his home. We disagree. 

{¶11} A review of the denial of a motion to suppress involves mixed 

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio5372, 797 N.E.2d 71, ¶8. At a suppression hearing, the trial court assumes the role 

of trier of fact and, as such, is in the best position to evaluate the evidence and the 
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credibility of witnesses. See State v. Carter (1995), 72 Ohio St.3d 545, 552, 651 

N.E.2d 965. 

{¶12} When reviewing a ruling on a motion to suppress, deference is given 

to the trial court’s findings of fact so long as they are supported by competent, 

credible evidence. Burnside at ¶8. With respect to the trial court’s conclusions of 

law, however, our standard of review is de novo and we must decide whether the 

facts satisfy the applicable legal standard. State v. McNamara (1997), 124 Ohio 

App.3d 706, 710, 707 N.E.2d 539. 

{¶13} Whether a defendant has standing to challenge the constitutionality 

of the search of a home depends upon “whether the defendant had an expectation 

of privacy in the home that society is prepared to recognize as reasonable.” State v. 

Williams (1995), 73 Ohio St.3d 153, 166, 652 N.E.2d 721, citing Rakas v. Illinois

(1978), 439 U.S. 128, 131, 99 S.Ct. 421, 424, 58 L.Ed.2d 387, 393, fn. 1, and State 

v. Steele (1981), 2 Ohio App.3d 105, 107, 440 N.E.2d 1353. However, “[t]he 

burden is upon the defendant to prove facts sufficient to establish such an 

expectation.” Williams, 73 Ohio St.3d at 166. An overnight guest may have a 

reasonable expectation of privacy in another’s home, but whether that expectation 

is reasonable depends upon the totality of the circumstances. Minnesota v. Olson

(1990), 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85; State v. Coleman
Case No. 9-09-19 

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(1997), 118 Ohio App.3d 522, 525, 693 N.E.2d 825, citing Williams, 73 Ohio 

St.3d at 166. 

{¶14} The evidence presented at the suppression hearing demonstrated that 

Messenger was Keith Mabe’s childhood friend of seventeen (17) years. (Mar. 20, 

2009 Tr. at 21). Mabe testified that he lived with his mother at 148 Kenmore 

Avenue (hereinafter the “residence” or “house”), but Messenger never “lived” at 

this residence. (Id. at 21-22). Mabe estimated that, at one point, Messenger was 

staying at the residence five to six (5-6) days per week, but the last time 

Messenger stayed there was the night before he was arrested, on November 24th 

or 25th of 2008. (Id. at 22, 24). Mabe testified that he consented to the search of 

the residence on January 25, 2009, and that the letter Messenger wrote to him 

(State’s exhibit 1) was found during that search. (Id. at 23-24). Mabe further 

testified that Messenger had been at the residence twice within the past two (2) 

weeks prior to the suppression hearing, but Messenger did not stay overnight. (Id. 

at 24-25). Messenger did not have any specific room in the house nor did he have 

a dresser for his clothes, though Messenger may have left “a shirt or two there.” 

(Id. at 25). 

{¶15} On cross-examination, Mabe testified that, a year or two ago, 

Messenger was “pretty much living” at the residence. (Id. at 27). Mabe testified 

that he gave no restrictions on Messenger as a guest and that Messenger had 
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permission to use any of the household items. (Id. at 27-28). Messenger washed 

and dried his clothes and took showers at the residence. (Id. at 28). Mabe testified 

that on the day of the search, January 23, 2009, Messenger was in jail. (Id. at 30). 

Mabe further testified that, on the day of Messenger’s arrest, Messenger was 

moving into the residence but was ultimately arrested and unable to move in. (Id. 

at 32). On redirect, Mabe testified that, at the time of Messenger’s arrest, he was 

living with Jessica Mullins. (Id. at 42). Messenger had his clothes and belongings 

at the apartment he shared with Mullins. (Id.). Mabe testified that Messenger did 

not have his belongings in the residence, except for a shirt or some miscellaneous 

items that Messenger left there. (Id. at 42-43). 

{¶16} Based upon the totality of the circumstances, we cannot conclude 

that the trial court erred in finding that Messenger failed to establish standing to 

challenge the constitutionality of the search of Mabe’s residence. The facts of this 

case are analogous to those in Williams, supra. Like the defendant-appellant in 

Williams, the residence searched belongs to another person (Mabe’s mother); 

Messenger possibly had some personal items (one or two shirts) in the residence; 

and Messenger was staying somewhere else at the time of the search (jail). 73 

Ohio St.3d at 166. Although there was evidence that Messenger was staying at 

Mabe’s residence almost daily a year or two ago, for several months prior to the 

search Messenger was in jail and not an overnight guest in the house. The fact 
Case No. 9-09-19 

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that Messenger was not an overnight guest at the time of the search is an important 

factor to consider. Williams, 73 Ohio St.3d at 166 (“* * * there was no evidence 

that appellant was an overnight guest in the apartment at the time the police 

executed the search warrant.”) (emphasis added); State v. Davis (1992), 80 Ohio 

App.3d 277, 285, 609 N.E.2d 174 (distinguishing the facts therein from Minnesota 

v. Olson, supra, on the basis that the defendant was not an overnight guest the 

evening of the search, nor even a week prior to the search.). 

{¶17} Aside from lacking a reasonable expectation of privacy in Mabe’s 

residence, Messenger also lacked a reasonable expectation of privacy in the letter 

he sent through the U.S. postal service to Mabe. State v. Haberek (1988), 47 Ohio 

App.3d 35, 41-43, 546 N.E.2d 1361. “[A]n individual has no legitimate 

expectation of privacy when he reveals information to a third party on the 

assumption it will be used for only a limited purpose and the third party betrays 

such confidence and conveys the information to the government.” Id., citing Smith 

v. Maryland (1979), 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, citing U.S. v. 

Miller (1976), 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71. Furthermore, the letter 

at issue here was left on the kitchen counter outside its envelope in open sight 

available for anyone in the residence to read. Accordingly, Messenger did not 

have a “reasonable expectation of privacy” in the letter; and therefore, he lacked 

standing to challenge the search of the contents of the letter as well. 
Case No. 9-09-19 

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{¶18} Since we have determined that Messenger lacked standing, we need 

not consider his argument that Mabe’s consent to the search was not voluntary. 

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

ASSIGNMENT OF ERROR NO. IX 

DEFENDANT-APPELLANT’S CONVICTION FOR HAVING 

A WEAPON UNDER DISABILITY IS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶20} In his ninth assignment of error, Messenger argues that his 

conviction for having a weapon while under a disability was against the manifest 

weight of the evidence. Specifically, Messenger argues that the State failed to 

prove that he knowingly acquired, had, carried, or used a firearm since: his 

personal belongings were not found near the firearm; his fingerprints were not 

found on the firearm; and the only evidence connecting him with the gun was the 

testimony of the victim, which was not credible or trustworthy. We disagree. 

{¶21} In determining whether a conviction is against the manifest weight 

of the evidence, a reviewing court must examine the entire record, “‘[weigh] the 

evidence and all reasonable inferences, consider the credibility of witnesses and 

[determine] whether in resolving conflicts in the evidence, the [trier of fact] 

clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.’” State v. Thompkins (1997), 

78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio 
Case No. 9-09-19 

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App.3d 172, 175, 485 N.E.2d 717. A reviewing court must, however, allow the 

trier of fact appropriate discretion on matters relating to the weight of the evidence 

and the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, 

231, 227 N.E.2d 212. 

{¶22} Circumstantial evidence is given the same weight as direct evidence. 

State v. Treesh (2001), 90 Ohio St.3d 460, 485, 739 N.E.2d 749, citing State v. 

Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. In fact, “circumstantial 

evidence * * * may also be more certain, satisfying and persuasive than direct 

evidence.” State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d 293, citations 

omitted. 

{¶23} R.C. 2923.13 provides, in pertinent part: 

(A) * * * no person shall knowingly acquire, have, carry, or use 

any firearm or dangerous ordnance, if any of the following 

apply: * * * (2) The person is under indictment for or has been 

convicted of any felony offense of violence[.] 

“In order to ‘have’ a firearm [within the meaning of R.C. 2923.13], one must 

either actually or constructively possess it.” (Emphasis omitted.) State v. Hardy

(1978), 60 Ohio App.2d 325, 327, 397 N.E.2d 773. A person has constructive 

possession of something when he is able to exercise dominion and control over 

that item. State v. Wolery (1976), 46 Ohio St.2d 316, 329, 348 N.E.2d 351. 

{¶24} At the beginning of the trial, Messenger stipulated that: he had a 

prior felony offense of violence and is, therefore, under a disability and could not 
Case No. 9-09-19 

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acquire, have, carry, or use a firearm. (Apr. 2-3, 2009 Tr. at 205). Messenger 

further stipulated that he knew he was under disability and was reckless in that 

regard. (Id.). Therefore, the State was only required to show that Messenger 

acquired, had, carried, or used a firearm for purposes of a conviction. 

{¶25} Jessica Mullins, Messenger’s girlfriend, testified that Messenger 

brought a shotgun into the apartment they shared together about a week prior to 

the domestic violence incident because of a high number of break-ins in the area. 

(Id. at 261-62). Mullins was not sure where Messenger obtained the gun, but 

testified that Messenger knew he was not supposed to have it. (Id. at 262). 

Mullins identified State’s exhibit one (1) as the shotgun that Messenger brought to 

the apartment. (Id. at 261); (State’s Ex. 1). On the day of the domestic violence 

incident, Mullins called 9-1-1 and informed the operator about the gun. (Id. at 

261); (State’s Ex.28). Mullins testified that Messenger and her slept in the same 

bedroom where the shotgun was found. (Id. at 268-69). 

{¶26} Officer Andrew Isom identified State’s exhibit one (1) as the 

Remington 12 gauge Express Magnum shotgun he located on the master bedroom 

dresser in Mullins’ apartment. (Id. at 213-14); (State’s Ex. 3). Officer Isom 

testified that the shotgun was operable, and he found the shotgun with several 

rounds next to it and with the safety off. (Id. at 215); (State’s Ex. 3). Officer Isom 

identified State’s exhibit seventeen (17) as Mullins’ written statement wherein she 
Case No. 9-09-19 

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indicated that Messenger brought the shotgun to the apartment about a week prior 

to the incident for protection from break-ins. (Id. at 226-27). Officer Isom also 

confirmed that Mullins’ written statement was consistent with what she told him at 

the scene. (Id. at 226). 

{¶27} Officer Baldridge testified that he sent a request for an ATF firearms 

trace on the shotgun and discovered it was purchased at a Dunham’s Discount 

Sports store by Nicole Sils Ongalisbang. (Id. at 302-05). Ongalisbang testified 

that she purchased the shotgun as a Christmas gift in 1999 for her then boyfriend 

and father of her daughter, Keith Mabe. (Id. at 306-07). Messenger’s childhood 

friend, Keith Mabe, confirmed that he received a 12 gauge Remington shotgun 

from Ongalisbang as a Christmas gift. (Id. at 311-12). Mabe testified that he 

thought State’s exhibit one (1) was the same gun he received from Ongalisbang, 

which he noticed was missing from his house. (Id. at 312-14). Mabe testified that 

Messenger would have had access to the gun in his home, though many other 

people did as well. (Id. at 315). However, Mabe identified State’s exhibit thirtytwo (32) as a taped conversation between Messenger and him that occurred while 

Messenger was in jail. (Id. at 327); (State’s Ex. 32). Mabe testified that, during a 

portion of the conversation where he was talking about getting various items from 

Mullins’ apartment, he was referring to the shotgun as well. (Id. at 327). Mabe 

testified: 
Case No. 9-09-19 

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Q: The segment I just played for you, you state “I need to get all 

the shit and everything, yeah, on the other hand on that other 

shit dude, what am I gonna do? I’m going to scratch that, and 

you’re gonna have to make that right later.” First of all, this 

gun, is it the first gun you owned? 

A: I’ve owned other guns, but – yeah, it was one of my first guns. 

Q: Okay. Mr. Messenger says “Yeah, you know what I mean. 

Yeah definitely. You know, cause that was my first shit, you 

hear me, that I ever had.” What are you talking about? 

A: I’m talking about the gun. 

(Id.). Mabe also identified State’s exhibit twenty-nine (29) as the original and 

State’s exhibit thirty-three (33) as an accurate copy of a letter he received from 

Messenger. (Id. at 330-32). Mabe read aloud certain pertinent portions of the 

letter, including: 

Don’t let anyone read this letter and be sure to destroy it if you – 

when you’re done reading it. Be sure to destroy the envelope 

also.” * * * “First never say anything about anything on the 

phone. If they haven’t already, they are going to ask her what –

ask her where that came from. I know she’ll say you, without a 

doubt she’ll say you gave it to me and you’ll get charged and 

you’ll go to the joint for some real time. If they can’t prove it 

you can probably save yourself if you just stay silent. Or they 

find this letter or if they pull the phone records and listen to our 

conversations and read between the lines you could be in 

trouble. If she does – if she hasn’t already the first thing they’ll 

do is try to get Jess to tell them where shit came from. You 

already know where things will go from there. The best way to * 

* * deter her is to be courteous but keep her at a distance like the 

snitch she is. * * * Flush it or mutilate it and throw it away. 

Don’t let anyone see this. You can’t trust anyone out there. You 

already know that. This is more important than a few measly 

dollars. Be careful on the phone. Incryptic (sic) talk can be 

decrypted or deciphered by crafty law enforcement people. 

Alright bro, I’ll call you soon. I’ll only say if you’ve got this or 
Case No. 9-09-19 

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not. Do not talk about the case at all. Please, for both our good, 

destroy this letter. Later bro. 

(Id. at 332-34); (State’s Exs. 29, 33). 

{¶28} After reviewing this evidence, we cannot conclude that Messenger’s 

conviction for having a weapon while under disability was against the manifest 

weight of the evidence. The jury had both direct and circumstantial evidence from 

which it could have concluded that Messenger had both actual and constructive 

possession of the shotgun. Mullins testified that Messenger brought the gun into 

the apartment. Mullins also testified that Messenger kept the gun in the bedroom 

where they both slept, upon which the jury could have concluded that Messenger 

had, at minimum, constructive possession of the shotgun. State v. Wyatt, 9th Dist. 

No. 22070, 2004-Ohio-6546, ¶¶23-26. Aside from Mullins’ testimony, Mabe, 

Messenger’s childhood friend, testified that he thought the gun found in Mullins’ 

and Messenger’s shared apartment was his gun. Furthermore, Mabe testified that 

Messenger called him from jail to talk about the gun, and the letter Messenger 

wrote Mabe contained references about something in Mullins’ apartment that 

Messenger was not supposed to have. A reasonable juror could have inferred from 

this evidence that Messenger obtained the gun from Mabe. 

{¶29} Messenger’s ninth assignment of error is, therefore, overruled. 
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ASSIGNMENT OF ERROR NO. XI 

DEFENDANT-APPELLANT’S CONVICTION FOR 

DOMESTIC VIOLENCE IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

ASSIGNMENT OF ERROR NO. X 

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO 

SUPPORT DEFENDANT-APPELLANT’S CONVICTION FOR 

DOMESTIC VIOLENCE. 

{¶30} In his eleventh assignment of error, Messenger argues that his 

domestic violence conviction was against the manifest weight of the evidence. 

Specifically, Messenger argues that his domestic violence conviction was against 

the manifest weight of the evidence because the only testimony that he caused 

physical harm to Mullins was her testimony, which was not credible. In his tenth 

assignment of error, Messenger argues that his domestic violence conviction was 

not supported by sufficient evidence because the State failed to prove he was “a 

person living as a spouse” since it failed to present evidence of cohabitation. We 

disagree. 

{¶31} As an initial matter, Messenger failed to move for a Crim.R. 29(A) 

motion for acquittal; and therefore, he has waived all but plain error with regard to 

the sufficiency of the evidence. (Apr. 2-3, 2009 Tr. at 361); State v. Robinson, 177 

Ohio App.3d 560, 2008-Ohio-4160, 895 N.E.2d 262, ¶18, overruled on other 

grounds by State v. Robinson, 124 Ohio St. 3d 76, 2009-Ohio-5937, 919 N.E.2d 
Case No. 9-09-19 

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190. We recognize plain error “‘with the utmost caution, under exceptional 

circumstances and only to prevent a manifest miscarriage of justice.’” State v. 

Landrum (1990), 53 Ohio St.3d 107, 111, 559 N.E.2d 710, quoting State v. Long

(1978) 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Under 

the plain error standard, the appellant must demonstrate that the outcome of his 

trial would clearly have been different but for the trial court’s errors. State v. 

Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043, citing State v. 

Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894. The standard of review for 

manifest weight was provided above. 

{¶32} R.C. 2919.25 provides, in pertinent part: 

(A) No person shall knowingly cause or attempt to cause 

physical harm to a family or household member. 

* * * 

(1) “Family or household member” means any of the following: 

(a) Any of the following who is residing or has resided with the 

offender: 

(i) A spouse, a person living as a spouse, or a former spouse of 

the offender; 

* * * 

(F) As used in this section * * * 

(2) “Person living as a spouse” means a person * * * who 

otherwise is cohabiting with the offender, * * * 

{¶33} Jessica Mullins testified that Messenger was her boyfriend. (Apr. 2-

3, 2009 Tr. at 255). Mullins further testified that, on November 24, 2008, 

Messenger and she had an argument about driving directions while they were 

driving home from Columbus. (Id. at 257-58). Mullins testified that she stayed at 
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her mother’s house that night, and Messenger stayed at Mabe’s house. (Id. at 258). 

The next day, November 25, 2008, Mullins called Messenger, and Messenger 

informed her that he wanted to get his belongings from her apartment. (Id.). 

Mullins picked Messenger up and the two began driving to her apartment when 

they began to rehash the prior day’s argument and also argued about him moving 

out of the apartment. (Id. at 259). Mullins testified that, as she was driving, 

Messenger reached over from the passenger’s side seat and grabbed her and bit her 

on her face. (Id., id. at 267). Mullins identified State’s exhibits eight and nine (8 

& 9) as photographs of the injuries Messenger caused when he bit her on the face. 

(Id. at 267); (State’s Exs. 8-9). On cross-examination, Mullins insisted that 

Messenger left teeth marks on her face from biting her, and that Messenger did not 

merely put his mouth on her face. (Id. at 285). On redirect, Mullins testified that 

she informed the 9-1-1 operator that Messenger bit her as well. (Id. at 290). 

Mullin’s 9-1-1 call was played at trial for the jury to hear. (Id. at 271); (State’s Ex. 

28). During the emergency phone call, Mullins states, “[m]y boyfriend just 

grabbed me by my face and bit me * * *.” (State’s Ex. 28). Mullins’ voluntary 

statement also states, “he grabbed my face and bit me under my eye on the check 

[sic] * * *.” (State’s Ex. 17). State’s exhibits four thru ten (4-10) were 

photographs of Mullins’ face after the biting; these pictures show redness and 
Case No. 9-09-19 

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irritation to her left cheek and a red mark or gouge under her right eye. (State’s 

Exs. 4-10). 

{¶34} Aside from Mullins’ testimony, Officer Isom testified that, when he 

reported to the scene of the incident, he observed: 

* * * visible injuries to her face * * * the injuries that I saw were 

a red, puffy mark under her right eye that I could see white 

indentations, it’s where it looked like someone had bit somebody 

in the face. And then I also saw marks on the –what would be 

her left side of her face where it would appear that someone 

grabbed her. 

(Apr. 2-3, 2009 Tr. at 209, 212). Isom identified State’s exhibits four thru ten (4-

10) as the photographs he took of Mullins’ injuries. (Id. at 218-21). Michelle 

Hughes, Mullins’ mother, testified that Mullins told her that Messenger bit her, 

and she saw red marks under both Mullins’ chin and eye. (Id. at 366, 373-74). 

From this evidence, the jury could have reasonably concluded that Messenger 

“knowingly cause[d] or attempt[ed] to cause physical harm” to Mullin. R.C. 

2919.25(A). 

{¶35} With regard to whether Messenger was “a family or household 

member” under R.C. 2919.25(A), the State presented evidence that Messenger was 

“a person living as a spouse” as defined under R.C. 2919.25(F)(2), i.e. that 

Messenger was cohabiting with Mullins. The essential elements of “cohabitation” 

under R.C. 2919.25(F)(2) are: (1) sharing of familial or financial responsibilities; 
Case No. 9-09-19 

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and (2) consortium. State v. Williams (1997), 79 Ohio St.3d 459, 465, 683 N.E.2d 

1126. 

Possible factors establishing shared familial or financial 

responsibilities might include provisions for shelter, food, 

clothing, utilities, and/or commingled assets. Factors that might 

establish consortium include mutual respect, fidelity, affection, 

society, cooperation, solace, comfort, aid of each other, 

friendship, and conjugal relations. These factors are unique to 

each case and how much weight, if any, to give to each of these 

factors must be decided on a case-by-case basis by the trier of 

fact. 

Id. 

{¶36} Mullins testified that Messenger was her live-in boyfriend and was 

sleeping with her in the same bedroom for three to four (3-4) months prior to the 

incident of domestic violence. (Id. at 255-57). From this testimony, the jury could 

have reasonably concluded consortium. Williams, 79 Ohio St.3d at 465. With 

regard to the sharing of financial responsibilities, Officer David Troutman 

identified several photographs he took at Mullins’ apartment of mail addressed to 

“Ryan Messenger, 217 Libby Lane, Marion, Ohio 43302” (Mullins’ apartment), 

including: State’s exhibit fifteen (15) as an envelope from “Marion General 

Hospital”; and State’s exhibit sixteen (16) as an envelope from “Great Lakes.” 

(Apr. 2-3, 2009 Tr. at 294-95, 297-98). Officer Isom also identified these same 

exhibits, and identified State’s exhibit twenty-five (25) as: “* * * a photograph of 

a piece of mail which – from looking at it was –like you had to send like a 
Case No. 9-09-19 

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monthly bill * * *,” which was addressed to “Ryan Messenger and 217 Libby 

Lane.” (Id. at 224-25, 253); (State’s Ex. 25); (see, also, State’s Ex. 26). State’s 

exhibit fifteen (15), the envelope from Marion General Hospital, clearly states on 

the bottom “PLEASE DETACH AND RETURN TOP PORTION WITH YOUR 

PAYMENT.” (State’s Ex. 15). Mullins further testified that she still sometimes 

receives mail for Messenger at her address. (Id. at 268). From this evidence, a 

rational juror could conclude that Messenger was “sharing financial 

responsibility” with Mullins, especially in light of the fact that Messenger was 

residing with Mullins for four (4) months prior to the incident. 

{¶37} Based upon all the evidence, we cannot conclude that Messenger’s 

domestic violence conviction is against the manifest weight of the evidence. 

Contrary to his assertions, his conviction did not rest upon Mullins’ testimony 

alone, but rather, the testimony of two independent witnesses who saw Mullins’ 

injuries, as well as the photographic evidence. Furthermore, we are not persuaded 

that the State failed to show Messenger “cohabited” with Mullins for the purpose 

of showing he was a “person living as a spouse” under R.C. 2919.25(F)(2). 

Viewing all the evidence, a rational juror could find that Messenger was 

cohabiting with Mullins and was, therefore, a person living as a spouse under R.C. 

2919.25(A). Furthermore, since we have found that Messenger’s domestic 

violence conviction was not against the manifest weight of the evidence, we must 
Case No. 9-09-19 

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also conclude the State presented sufficient evidence to support the conviction. 

State v. Ham, 3d Dist. No. 16-09-01, 2009-Ohio-3822, ¶43; State v. Sidders, 3d 

Dist. No. 14-08-24, 2009-Ohio-49, ¶ 42, citations omitted. Nor do we find plain 

error with regard to Messenger’s domestic violence conviction. 

{¶38} Messenger’s tenth and eleventh assignments of error are overruled. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY PROHIBITING HIM FROM 

SUBPOENAING DR. TRANEN. 

{¶39} In his second assignment of error, Messenger argues that he was 

denied his Sixth Amendment right to compulsory process to obtain witnesses in 

his favor when the trial court granted the State’s motion in limine to exclude Dr. 

Tranen’s testimony. We disagree. 

{¶40} A motion in limine is a request, made in advance of the actual 

presentation of the evidence and usually prior to trial, that the court limits or 

excludes certain evidence which the movant believes is improper. State v. Black, 

172 Ohio App.3d 716, 2007-Ohio-3133, 876 N.E.2d 1255, ¶11, citing State v. 

Winston (1991), 71 Ohio App.3d 154, 158, 593 N.E.2d 308. “The motion asks the 

court to exclude the evidence unless and until the court is first shown that the 

material is relevant and proper.” Black, 2007-Ohio-3133, at ¶11. Since a trial 

court’s decision on a motion in limine is a ruling to exclude or admit evidence, we 
Case No. 9-09-19 

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review the trial court’s decision for an abuse of discretion that amounted to 

prejudicial error. Id., citing State v. Yohey (Mar. 18, 1996), 3d Dist. No. 9-95-46, 

citing State v. Graham (1979), 58 Ohio St.2d 350, 390 N.E.2d 805, and State v. 

Lundy (1987), 41 Ohio App.3d 163, 535 N.E.2d 664. An abuse of discretion 

constitutes more than an error of law or judgment; rather, it implies that the trial 

court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore

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

{¶41} Messenger subpoenaed Dr. Tranen for the purpose of testifying that 

Mullins had been prescribed Suboxone, which Messenger described as “one of the 

most powerful narcotic [sic] on the prescription drug market today,” and which 

Messenger believed affected Mullins’ state of mind during the incident. (Apr. 1, 

2009 Tr. at 85-86). The trial court then asked Messenger if he had any medical 

literature to support his claim that Suboxone could affect a person’s state of mind, 

memories, or ability to recall. (Id. at 87). Messenger responded, “I’m not a doctor. 

That’s why I wanted to get Miss Tranen on the stand and examine her in trial and 

ask her ‘what do you think the effects of that drug on Miss Mullins is’”. (Id. at 88). 

The following dialogue occurred thereafter: 

THE COURT: So you’re sort of guessing? 

MR. MESSENGER: No. I mean, I know her. I mean, I don’t 

have any evidence here. I mean, I’ve been around her, I’ve lived 

with her for a while. She was my girlfriend. I saw her take a 

Seboxin (sic) on a daily basis. I’ve looked it up on the Internet 

and researched that. It’s a very, very powerful narcotic. 
Case No. 9-09-19 

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THE COURT: Does it give you any indication that it affects a 

person’s recall perception? 

MR. MESSENGER: Other than the fact that all narcotics would 

affect somebody’s memory and working of the mind. 

THE COURT: Let’s put it this way. I’m inclined to sustain the 

Motion in Limine at this point. But if you get some medical 

literature indicating otherwise, I might reconsider the matter. 

That’s the best I can do. I just can’t go on your personal beliefs 

and such as far as that goes. 

MR. MESSENGER: I’m not really asking you to go on my 

personal beliefs, I’m just asking can we get the doctor into trial 

and let the truth come out? 

THE COURT: Not on your hunch. There’s a lot of disruption 

you’re doing there. You call a doctor out from her medical 

practice for – that’s a pretty severe disruption of things. 

MR. MESSENGER: Well, I mean, with all due respect to that, I 

mean, I’m on trial here for some very serious felonies. 

THE COURT: And I agree. 

MR. MESSENGER: Maximum penalty’s of upwards of 10 years 

in prison. Sorry to inconvenience everybody, but I’m kind of 

inconvenienced myself. 

* * * 

THE COURT: Maybe, but you’d better be convenient enough to 

get some medical literature to support your opinions if you’re 

wanting that doctor up here. 

MR. MESSENGER: Okay. Then that’s what I’ll have to do, 

Your Honor. 

THE COURT: Very good. 

MR. YAGER: The only thing on that, I have no power over that 

subpoena, Your Honor. I’d ask at least it be sent back or the 

doctor can no – even if he’s allowed to bring in the doctor it 

won’t be till Friday, and she’s scheduled to be here tomorrow at 

9. 

THE COURT: Alright. 

MR. YAGER: I don’t know what we can do about that. 

THE COURT: Mr. Messenger, you were the one – you wouldn’t 

be calling your case until they’re done presenting their side of 

the case. They probably wouldn’t –might be done by tomorrow, 

but you wouldn’t be going to the defense case by – 
Case No. 9-09-19 

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* * Let’s do it that way. We’ll take a look and see what the story 

is. Yeah, we’ll set the subpoena back to Friday, I guess, as far as 

that goes. Somebody gonna inform the doctor about that? 

* * * 

MR. YAGER: We’ll give her a call and just tell her she’ll still 

possibly need to be here Friday morning. 

THE COURT: Alright. We’ll go ahead and handle it that way. 

(Id. at 88-90). 

{¶42} Based upon our review of the foregoing, we cannot conclude that the 

trial court abused its discretion by sustaining the State’s motion in limine with 

respect to Dr. Tranen. To begin with, the trial court allowed Messenger an 

opportunity to present medical literature supporting his claims, but Messenger 

failed to do so. Messenger’s only reason for calling Dr. Tranen was based upon 

his assumption that Suboxone affected Mullins’ state of mind. Aside from that, 

we do not find the trial court’s ruling prejudiced Messenger when he was allowed 

to ask Mullins directly about whether her medication impaired her thinking, to 

which she answered “No.” (Apr. 2-3, 2009 Tr. at 281). 

{¶43} Messenger’s second assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY ALLOWING JESSICA 

MULLINS TO TESTIFY TO HEARSAY EVIDENCE OF 

OTHER ACTS. 

ASSIGNMENT OF ERROR NO. IV 
Case No. 9-09-19 

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THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY LIMITING HIS CROSS 

EXAMINATION OF MS. MULLINS REGARDING PRIOR 

ALLEGATIONS OF DOMESTIC VIOLENCE. 

ASSIGNMENT OF ERROR NO. V 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY LIMITING HIS 

EXAMINATION OF MICHELLE HUGHES. 

ASSIGNMENT OF ERROR NO. VI 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY LIMITING HIS 

EXAMINATION OF MR. MABE REGARDING JESSICA 

MULLINS [SIC] CHARACTER FOR UNTRUTHFULNESS. 

{¶44} In Messenger’s third, fourth, fifth, and sixth assignments of error, he 

alleges the trial court erred with regard to evidentiary matters. Generally, these 

assignments of error relate to Messenger’s attempts to discredit Mullins’ 

credibility. Messenger’s assignments of error lack merit. 

{¶45} To begin with, “[i]t is well settled * * * that decisions concerning 

evidentiary matters, including the scope of cross-examination, are within the broad 

discretion of the trial court and are not subject to reversal on appeal in the absence 

of an abuse of that discretion.” State v. Williams (June 6, 2000), 3d Dist. No. 1-99-

86, at *7, citing In re Estate of Bednarczuk (1992), 80 Ohio App.3d 548, 554, 609 

N.E.2d 1310; O'Brien v. Angley (1980), 63 Ohio St.2d 159, 163, 407 N.E.2d 490. 

An abuse of discretion constitutes more than an error of law or judgment; rather, it 
Case No. 9-09-19 

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implies that the trial court acted unreasonably, arbitrarily, or unconscionably. 

Blakemore, 5 Ohio St.3d at 219. 

{¶46} “Additionally, any error in the admission or exclusion of evidence 

will be considered harmless error unless it affects a substantial right of the 

accused.” State v. Wegmann, 3d Dist. No. 1-06-98, 2008-Ohio-622, ¶41, citing 

State v. Condon (2003), 152 Ohio App.3d 629, 2003-Ohio-2335, 789 N.E.2d 696, 

¶80; Crim.R. 52(A); Evid.R. 103(A). Errors not affecting a defendant’s 

substantial rights must be disregarded. State v. Schofield, 4th Dist. Nos. 01CA36, 

02CA13, 2002-Ohio-6945, ¶138, citing Crim.R. 52(A). In other words, an 

appellate court will not reverse judgments for an erroneous evidentiary ruling 

unless it appears that the defendant’s rights have been prejudiced. Id., citing State 

v. Woolum (Mar. 5, 1996), 4th Dist. No. 95CA2083. 

{¶47} Messenger argues, in his third assignment of error, that the trial court 

erred when it allowed Mullins to testify regarding hearsay evidence of other acts 

which was highly prejudicial under Evid.R. 404. Messenger points to the 

following testimony in support of this alleged error: 

Q: Did he threaten to kill you? 

A: Yes. 

Q: Were you scared? 

A: Yes. 

Q: Why were you scared? 

A: Just from past things that I’ve heard that he’s done and he’s 

told me he’s done. 

MR. MESSENGER: Objection. 
Case No. 9-09-19 

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THE COURT: Overruled. 

Q: What past things did he tell you he had done? 

A: Just getting into fights with other girlfriends, and I’ve heard 

about, and other stuff he’s done with shootings. 

MR. MESSENGER: Objection, Your Honor. 

THE COURT: Sustained. 

(Apr. 2-3, 2009 Tr. at 260). Messenger argues that sustaining the objection after 

Mullins testified was “too late; the damage was done.” (Appellant’s Brief at 15). 

{¶48} Evid. R. 404(A) provides: “[a]lthough relevant, evidence is not 

admissible if its probative value is substantially outweighed by the danger of 

unfair prejudice, of confusion of the issues, or of misleading the jury.” Hearsay is 

defined as “a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

Evid.R. 801(C). Evid.R. 802 provides the general rule that hearsay is not 

permitted, but Evid.R. 803(3) provides an exception to the general rule for the 

declarant’s then existing state of mind. Mullins’ answer to the question “[w]hy 

were you scared?” goes to Mullins’ state of mind and falls within Evid.R. 803(3)’s 

exception. Furthermore, Mullins’ testimony was not offered for the truth of the 

matter asserted since the truthfulness of Mullins’ testimony is irrelevant as to 

whether or not she was scared; and therefore, Mullins’ testimony was not hearsay. 

Likewise, the first part of Mullins’ testimony—“[j]ust getting into fights with 

other girlfriends”—to the prosecution’s next question is not hearsay since it was a 

statement against interest under Evid.R. 801(D)(2). Finally, with regard to 
Case No. 9-09-19 

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Mullins’ testimony that “I’ve heard about, and other stuff he’s done with 

shootings,” the trial court sustained Messenger’s general objection. That 

Messenger waited to object until after Mullins testified is not error on the trial 

court’s part but on Messenger’s part for waiting to lodge the objection. For these 

reasons, we find that Messenger’s third assignment of error lacks merit. 

{¶49} In his fourth assignment of error, Messenger argues that the trial 

court erred by limiting his cross-examination of Mullins regarding her past 

allegations of domestic violence. Messenger’s cross-examination of Mullins at 

trial was as follows: 

Q: Isn’t it true that you were, in the year of 2006, around 

February 22nd, you were involved an [sic] incident of Domestic 

Violence whereby you had accused your mother of assaulting 

you, but in fact, when the police showed up you were actually the 

one arrested on Domestic Violence? 

MR. YAGER: Objection. 

THE COURT: Sustained. 

MR. YAGER: I’m gonna ask that be stricken, Your Honor. 

THE COURT: It is ordered stricken. The jury will disregard 

the question. 

(Apr. 2-3, 2009 Tr. at 286). Messenger argues that there was no basis for 

sustaining the prosecution’s objection, and that the question was related to the 

victim’s truthfulness. 

{¶50} Evid. R. 404(A)(3) provides, “[e]vidence of the character of a 

witness on the issue of credibility is admissible as provided in Rules 607, 608, and 

609.” Evid.R. 608(B) provides, in pertinent part: 
Case No. 9-09-19 

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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 cross-examination of the 

witness (1) concerning the witness’s character for truthfulness or 

untruthfulness * * *. 

{¶51} A defendant is permitted, in the court’s discretion, to cross-examine 

a victim about prior false accusations if they are clearly probative of truthfulness 

or untruthfulness pursuant to Evid.R. 608(B). State v. Husseln, 152 Ohio App.3d 

67, 2003-Ohio-1369, 786 N.E.2d 536, ¶8, citing State v. Boggs (1992), 63 Ohio 

St.3d 418, 588 N.E.2d 813; State v. Fredrick (Mar. 8, 2002), 2nd Dist. No. 18996, 

at *3. 

{¶52} After reviewing the record, we cannot find that the trial court abused 

its discretion by not allowing the testimony. As an initial matter, we must note 

that the prosecution’s objection was a general objection; and therefore, the trial 

court’s reason(s) for not allowing the testimony are not provided in the record. 

(Apr. 2-3, 2009 Tr. at 286). Accordingly, the trial court may have excluded the 

evidence, even though it was relevant, because Messenger’s question was 

compound and confusing to the jury. Evid.R. 403(A). Although some appellate 

courts have found an abuse of discretion when a trial court refused to admit 

testimony of prior false accusations under Evid.R. 608(B), those cases involved 

multiple false allegations against the defendant. Husseln, 2003-Ohio-1369, at ¶8 
Case No. 9-09-19 

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(evidence that the victim had previously filed five false domestic-violence charges 

against the defendant that had resulted in either dismissals or acquittals); Fredrick, 

2nd Dist. No. 18996, at *3 (evidence that the victim had previously filed multiple 

domestic-violence charges against the defendant that were either dismissed or law 

enforcement failed to file charges because they discovered there was no domestic 

violence). Unlike the defendants in Husseln and Fredrick, supra, Messenger 

attempted to offer evidence that Mullins fabricated one domestic violence charge 

against her mother more than two (2) years prior to incident herein. Aside from 

that, the trial court allowed Messenger to question Mullins about her 2004 

conviction for check fraud to which Mullins admitted pleading guilty. (Apr. 2-3, 

2009 Tr. at 383). Thus, Messenger was able to raise doubts about Mullins’ 

credibility through this testimony. Under these circumstances we cannot find an 

abuse of discretion. Even if the trial court erred—which we do not find—its error 

is not reversible error since Messenger’s convictions were based on more than 

Mullins’ testimony alone. For all these reasons, we find that Messenger’s fourth 

assignment of error lacks merit. 

{¶53} In his fifth assignment of error, Messenger argues that the trial court 

erred by limiting his examination of Michelle Hughes. Specifically, Messenger 

objects to the trial court’s rulings with respect to the following line of questioning: 
Case No. 9-09-19 

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Q: Do you remember telling me in that phone conversation that 

Jessica’s the type of girl to put marks on her own face and call 

the Police and say you did it? 

MR. YAGER: Objection. That’s a leading question. 

THE COURT: Sustained. 

MR. MESSENGER: Your Honor, leading questions are – 

THE COURT: Are not permitted in this situation. 

* * * 

Q: * * * Do you remember warning me in any way about 

Jessica? 

MR. YAGER: I’m going to object again, Your Honor. Well, 

warning him in any way, I don’t know if that’s – he’s looking for 

some specific incidents. 

MR. MESSENGER: You know, I’ll move to strike that question 

and withdraw it. 

THE COURT: Okay. 

* * * 

Q: Did I express concern that Jessica may do something bad to 

me? 

MR. YAGER: Objection. That’s hearsay, Your Honor. It’s his 

statement out of court. 

THE COURT: Sustained. 

MR. MESSENGER: Yes, Your Honor. 

Q: In your opinion does Jessica Mullins have a tendency towards 

dishonesty? 

MR. YAGER: Objection. 

THE COURT: Sustained. 

(Apr. 2-3, 2009 Tr. at 369-70). 

{¶54} Messenger argues that the first question was not leading, and was 

relevant since it related to Mullins’ credibility. We disagree. “A leading question 

has been defined as a question that suggests a particular answer by the form or 

substance of the inquiry.” Haley v. Mason & Dixon Lines, Inc. (Aug. 26, 1992), 

1st Dist. No. C-910221, at *5, citing State v. Bradley (Sept. 22, 1987), 4th Dist. 
Case No. 9-09-19 

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No. 1583. “To determine what constitutes a leading question, ‘[t]he whole issue is 

whether an ordinary man would get the impression that the questioner desired one 

answer rather than another.’” Haley, 1st Dist. No. C-910221, at *5, quoting 

McCormick, Evidence (4 Ed.1992), 17-18, Section 6. Messenger’s question was 

phrased such that an ordinary man would get the impression his desired answer 

was “yes,” and as such, it is leading. Messenger was not permitted to ask leading 

questions without the trial court’s permission since he was conducting a direct 

examination of Hughes. Evid.R. 611(C). No such permission was asked or 

granted. We, therefore, find no error with regard to the trial court’s ruling on this 

objection. 

{¶55} We are also not persuaded that the trial court erred in its subsequent 

evidentiary rulings either. Messenger’s question “[d]id I express concern that 

Jessica might do something bad to me?” elicited inadmissible hearsay testimony. 

Messenger now argues that it was relevant to show his state of mind, and 

therefore, admissible as an exception to the hearsay rule. This argument is 

lacking. Messenger never argued this at trial, and furthermore, Messenger’s state 

of mind is irrelevant in this context. Next, Messenger argues that his question 

about Mullins “tendency towards dishonesty” was relevant to show Hughes’ 

opinion about Mullins’ truthfulness. We disagree. As an initial matter, we note 

that the trial court sustained a general objection to Messenger’s question; and 
Case No. 9-09-19 

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therefore, the record does not indicate the trial court’s basis for sustaining the 

objection. (Apr. 2-3, 2009 Tr. at 370). Additionally, Messenger’s question did not 

ask Hughes her opinion of Mullins’ “truthfulness or untruthfulness” as required by 

Evid.R. 608(A)(1); rather, Messenger asked about Mullins’ “tendency towards 

dishonesty.” (Id.). Evid.R. 608(A) provides, in pertinent part, “[t]he 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[.]” Although the concepts of 

dishonesty and untruthfulness can overlap, they are not the same for purposes of 

Evid.R. 608(A). Furthermore, as we have already mentioned, Messenger was 

permitted to raise issues about Mullins’ credibility by asking Mullins about her 

2004 check fraud conviction. (Apr. 2-3, 2009 Tr. at 383). Additionally, as we 

have also noted, Messenger’s convictions were not based upon Mullins’ testimony 

alone. Under these circumstances, we cannot conclude that the trial court abused 

its discretion. Even if we were to conclude the trial court erred in this regard, we 

would not find its error constituted reversible error. Messenger’s fifth assignment 

of error lacks merit. 

{¶56} In his sixth assignment of error, Messenger argues that the trial court 

erred by limiting his examination of Keith Mabe as to his opinion of Mullins’ 

“tendency towards dishonesty” and to Mullins’ reputation for being “dishonest.” 
Case No. 9-09-19 

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(Apr. 2-3, 2009 Tr. at 343-44). With regard to Messenger’s question about 

Mabe’s opinion, we find that Messenger’s arguments lack merit for the same 

reasons given for the similar questions he asked of Hughes. With regard to the 

question of Mullins’ reputation, Messenger failed to lay a sufficient foundation for 

this question in addition to incorrectly asking about Mullins’ “dishonesty.” That 

Mabe was friends with Mullins is an insufficient foundation for Mabe to testify 

about Mullins’ reputation for truthfulness or untruthfulness in the community. (Id. 

at 339). For these reasons, Messenger’s sixth assignment of error lacks merit. 

{¶57} For all the aforegoing reasons, Messenger’s third, fourth, fifth, and 

sixth assignments of error are all overruled. 

ASSIGNMENT OF ERROR NO. VII 

PROSECUTORIAL MISCONDUCT RENDERED 

DEFENDANT-APPELLANT’S TRIAL FUNDAMENTALLY 

UNFAIR IN VIOLATION OF THE CONSTITUTIONS OF 

OHIO AND THE UNITED STATES. 

{¶58} In his seventh assignment of error, Messenger argues that he was 

deprived a fair trial because of prosecutorial misconduct when the prosecutor 

requested to take a recess “so we can admonish the witness” in the presence of the 

jury. We disagree. 

{¶59} “The test for prosecutorial misconduct is whether remarks were 

improper and, if so, whether they prejudicially affected substantial rights of the 

accused. The touchstone of analysis is the fairness of the trial, not the culpability 
Case No. 9-09-19 

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of the prosecutor.” State v. Jones (2000), 90 Ohio St.3d 403, 420, 739 N.E.2d 300. 

An appellate court should consider several factors in making this determination: 

“(1) the nature of the remarks, (2) whether an objection was made by counsel, (3) 

whether corrective instructions were given by the court, and (4) the strength of the 

evidence against the defendant.” State v. Braxton (1995), 102 Ohio App.3d 28, 41, 

656 N.E.2d 970. The reviewing court should also ask whether the misconduct was 

an isolated incident in an otherwise properly tried case. Id. A prosecutor’s 

misconduct will not be considered grounds for reversal unless the misconduct has 

deprived the defendant of a fair trial. Id. 

{¶60} After playing a copy of the recorded conversation between 

Messenger and Mabe (State’s Ex. 32), the prosecutor asked Mabe: 

Q: What were you talking about there? 

A: Well, I was talking about tools that come up missing, and I 

also – I’m talking about things, that you know, I got a case 

pending and I might incriminate myself. Other things. Not that 

weapon. 

Q: We spoke last night? 

A: Yes, we did. 

Q: Did you not tell me last night that you were talking about the 

gun? 

A: I did not tell you that. 

MR. YARGER: Your Honor, I’d like to take a recess so we can 

admonish the witness. 

THE COURT: Alright. Ladies and gentlemen, we will take a 

short recess here. * * * It remains your duty not to form or 

express any opinion on this case until the case is finally 

submitted to you. 
Case No. 9-09-19 

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(Apr. 2-3, 2009 Tr. at 319). After Mabe was admonished about the possible 

penalties for perjury, the trial court realized that it was 4:40 p.m. and that the 

matter would need to be continued until the next morning. (Id. at 324). The next 

day, Mabe was asked again about the recording and testified that he was talking 

about the gun. (Id. at 327). 

{¶61} After reviewing the transcript, we cannot conclude that the 

prosecutor’s remarks in the presence of the jury deprived Messenger of a fair trial. 

Although the prosecutor probably should have asked this question at the bench in 

a sidebar conference, Messenger lodged no objection at trial; the trial court 

reminded the jury of its duty not to form opinions until after the case was finally 

submitted; and the evidence against the defendant was sufficiently strong that we 

cannot find reversible error on this basis. Braxton, 102 Ohio App.3d at 41. 

Additionally, we note that the prosecutor’s comment might have actually helped 

Messenger since it raised a question of Mabe’s credibility, and Mabe was a 

witness for the prosecution. We also believe this remark was an isolated oversight 

in an otherwise properly prosecuted trial. Braxton, 102 Ohio App.3d at 41. At 

most, we would find this amounted to harmless error. 

{¶62} Messenger’s seventh assignment of error is, therefore, overruled. 

ASSIGNMENT OF ERROR NO. VIII 

THE COMBINATION OF THE AFOREMENTIONED 

ERRORS ARE SUFFICIENT TO CALL INTO QUESTION 
Case No. 9-09-19 

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THE VALIDITY OF THE VERDICT, PREVENTING THE 

APPELLANT FROM OBTAINING THE FAIR TRIAL 

GUARANTEED BY THE FIFTH AND SIXTH 

AMENDMENTS TO THE U.S. CONSTITUTION AS MADE 

APPLICABLE TO THE STATES BY THE FOURTEENTH 

AMENDMENT, AND ARTICLE ONE, SECTIONS TEN AND 

SIXTEEN OF THE OHIO CONSTITUTION. 

{¶63} Messenger, in his eighth assignment of error, argues that the 

combination of the aforementioned errors prevented him from having a fair trial. 

We disagree. 

{¶64} “[A] conviction will be reversed where the cumulative effect of 

errors in a trial deprives a defendant of the constitutional right to a fair trial even 

though each of numerous instances of trial court error does not individually 

constitute cause for reversal.” State v. Garner (1995), 74 Ohio St.3d 49, 64, 656 

N.E.2d 623. “The failure to establish multiple instances of harmless error makes 

the doctrine of cumulative error inapplicable.” State v. Hupp, 3d Dist. No. 1-08-

21, 2009-Ohio-1912, ¶33, citing State v. Hohvart, 7th Dist. No. 06 MA 43, 2007-

Ohio-5349, ¶37. Messenger has failed to demonstrate multiple instances of 

harmless error. Hupp, 2009-Ohio-1912, at ¶33, citing Hohvart, 2007-Ohio-5349, 

at ¶37. Neither can we conclude that Messenger was denied his right to a fair trial. 

Garner, 74 Ohio St.3d at 64. 

{¶65} Messenger’s eighth assignment of error is overruled. 
Case No. 9-09-19 

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ASSIGNMENT OF ERROR NO. XII 

DEFENDANT-APPELLANT’S SENTENCE FOR HAVING A 

WEAPON UNDER DISABILITY IS EXCESSIVE. 

{¶66} In his twelfth assignment of error, Messenger argues that the trial 

court’s imposition of five (5) years imprisonment for his having a weapon under 

disability conviction is excessive since it is “not commensurate with [his] conduct 

and is contrary to law because this is in no way the worst form of the offense.” 

(Appellant’s Brief at 25). 

{¶67} A trial court’s sentence will not be disturbed on appeal absent a 

defendant’s showing by clear and convincing evidence that the sentence is 

unsupported by the record; the sentencing statutes’ procedure was not followed or 

there was not a sufficient basis for the imposition of a prison term; or that the 

sentence is contrary to law.3 State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767, 

¶23 (the clear and convincing evidence standard of review set forth under R.C. 

2953.08(G)(2) remains viable with respect to those cases appealed under the 

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes, 

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶4; State v. Tyson, 3d Dist. Nos. 

1-04-38; 1-04-39, 2005-Ohio-1082, ¶19, citing R.C. 2953.08(G). Clear and 

 

3

 We note that the Supreme Court of Ohio recently released a plurality opinion in State v. Kalish, 120 Ohio 

St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912, which established a two-part test utilizing both the clear and 

convincing and abuse of discretion standard of review in reviewing felony sentencing decisions under R.C. 

2953.08(G). While we cite to this Court’s precedential clear and convincing standard of review, which was 

affirmed and adopted by three dissenting Justices in Kalish, we note that the outcome of our decision in this 

case would be identical under the Kalish plurality’s two-part test as well. 
Case No. 9-09-19 

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convincing evidence is that “which will produce in the mind of the trier of facts a 

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford 

(1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus; State v. 

Boshko (2000), 139 Ohio App.3d 827, 835, 745 N.E.2d 1111. An appellate court 

should not, however, substitute its judgment for that of the trial court because the 

trial court is ‘“clearly in the better position to judge the defendant’s likelihood of 

recidivism and to ascertain the effect of the crimes on the victims.”’ State v. 

Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶16, quoting State v. Jones

(2001), 93 Ohio St.3d 391, 400, 754 N.E.2d 1252. 

{¶68} Messenger has failed to clearly and convincingly establish that his 

sentence was contrary to law. Messenger was convicted of one (1) count of 

having a weapon while under a disability in violation of R.C. 2923.13(A)(2), a 

third degree felony. R.C. 2929.14(A)(3) provides, “[f]or a felony of the third 

degree, the prison term shall be one, two, three, four, or five years”; and therefore, 

the trial court’s imposition of five (5) years, being within the statutory range, is not 

contrary to law. Additionally, prior to imposing its sentence, the trial court stated 

that it considered the revised code sentencing factors and the specific 

circumstances of the case. (Apr. 8, 2009 Sentencing Hearing Tr. at 451). In its 

judgment entry, the trial court stated that it considered “the record, oral statements, 

any victim impact statement and pre-sentence report prepared, as well as the 
Case No. 9-09-19 

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principles and purposes of sentencing under R.C. 2929.11, and the appropriate 

factors under R.C. 2929.12.” (Apr. 9, 2009 JE, Doc. No. 98). Messenger’s presentence investigation report (PSI)4

 indicates that Messenger previously pled 

guilty to one (1) count of felonious assault in violation of R.C. 2903.11(A)(2), a 

second degree felony with a three-year firearm specification. This offense was 

committed when Messenger was eighteen (18). Messenger also had an extensive 

juvenile record, including convictions for: grand theft, receiving stolen property, 

aggravated burglary, disorderly conduct, menacing, and felonious assault. (PSI). 

The State informed the trial court that Messenger had other infractions, including 

driving under suspension. (Apr. 8, 2009 Sentencing Hearing Tr. at 449). Aside 

from that, the State pointed out that Messenger was not a good candidate for 

community control since he had several community control violations and was 

previously terminated from judicial release. (Id. at 449-50). In light of the 

foregoing, we cannot find error in the trial court’s imposition of five (5) years for 

Messenger’s third degree felony conviction. 

{¶69} Messenger’s twelfth assignment of error is, therefore, overruled. 

{¶70} Having found no error prejudicial to the appellant herein in the 

 

4

 No PSI was prepared for this offense, but Messenger’s Jan. 29, 1998 PSI was on file and considered by 

the trial court for purposes of sentencing Messenger. (See Apr. 9, 2009 JE, Doc. No. 98). 
Case No. 9-09-19 

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particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS, J., concurs in Judgment Only. 

/jlr 

WILLAMOWSKI, P.J., Concurring Separately. 

{¶71} I concur fully with the majority opinion, however write separately to 

emphasize that the appropriate standard of review was applied. In his twelfth 

assignment of error, Messenger alleges that the trial court erred in imposing an 

excessive sentence because his conduct was not the worst form of the offense. 

Messenger’s appeal of his felony sentence was not pursuant to R.C. 2929.12, 

which, in my opinion would require an abuse of discretion standard. Thus, the 

clearly and convincingly contrary to law standard used to review this case, as set 

forth in R.C. 2953.08(G), is the proper standard of review herein. 

/jlr