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

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2013 CA 92

v. : T.C. NO. 13CR297 SHAUN A. RIESKE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 22nd day of August , 2014.

. . . . . . . . . . RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Sha un A. Rieske appeals from his conviction and2 sentence for one count of felonious assau lt (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony of the second degree. Ri eske filed a timely notice of appeal with this Court on October 28, 2013. {¶ 2} The incident which forms the basis for the instant appeal occurred at approximately 4:30 a.m. on April 11, 2013, when th e victim, Jason Lisch, was attacked just outside his home by an individual wielding a baseball bat. At the time of the attack, Lisch resided at 431 Selma Road in Clark County, Ohi o. Lisch testified that while he was letting his dog out, a male wearing a black hoodie and blue jeans approached him and struck him several times with a baseball bat. The assailant struck Lisch on his arms, legs, and ribs. Lisch testified that he observed one-half of his assailant’s face during the attack and was able to identify his attacker as Rieske. Lisch furthe r testified that he had a history with Rieske. Rieske was friends with the ex-boyfriend of Li sch’s girlfriend, Daniel Blair. Lisch believed that Daniel Blair had sent Rieske to attack him. {¶ 3} After the attack was over, Rieske ra n away. Lisch got up and went inside his house and called 911. When the police arrive d, Lisch identified his attacker as Rieske and provided a description of him. Rieske was arrested for felonious assault at his mother’s house after he got off work later that day. {¶ 4} On April 29, 2013, Rieske was indicted fo r one count of felonious assault. At his arraignment on May 8, 2013, Rieske pled not guilty to the charged offense. The case proceeded to jury trial on September 11, 2013, and Rieske was ultima tely found guilty of felonious assault with a deadly weapon. At th e sentencing hearing, the trial court ordered Rieske to serve two years in prison, but st ayed execution of his sentence pending the3 outcome of the instant appeal. {¶ 5} It is from this judgment that Rieske now appeals. {¶ 6} Rieske’s first assignment of error is as follows: {¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO CALL AN IMPEACHMENT WITNESS, AND PRESENT IMPEACHMENT DOCUMENTARY EVIDENCE, DESPITE THAT THE EVIDENCE WAS NOT DISCLOSED TO DEFENSE COUNSEL UNTIL THE WITNESS WAS CALLED TO TESTIFY AT TRIAL.” {¶ 8} In his first assignment, Rieske conte nds that the trial court erred when it allowed the State to impeach him with evidence that had not been disclosed prior to trial. Specifically, Rieske argues that the trial court abused its discretion when it permitted the State to introduce documentary evidence and rebuttal testimony from the intake officer at the Clark County Jail without first disclosing this evidence during discovery in violation of Crim. R. 16. The evidence that the Stat e introduced over the objection from defense counsel established that Rieske was wearing a black hoodie when he was arrested and taken into custody. As previously stated, Lisch te stified that Rieske was wearing a black hoodie during the attack. {¶ 9} Crim.R. 16 governs discovery in criminal prosecutions. By its terms, the purpose of Crim.R. 16 is “to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.” Crim.R. 16(A). The Ohio Supreme Court has stated that the overall4 objective of the discovery rules is “‘is to remove the element of gamesmanship from a trial’” and “to prevent surprise and the secreting of evidence favorable to one party.” Lakewood v. Papadelis , 32 Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987), quoting State v. Howard , 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978). {¶ 10} Once discovery is initiated by demand of the defendant, the prosecutor is required to copy or photograph certain “items rela ted to the particular case indictment, information, or complaint, and which are material to the prep aration of a defense, or are intended for use by the prosecuting attorney as ev idence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably av ailable to the state, subject to the provisions of this rule,” as identified in Crim.R. 16(B). These items include “laboratory or hospital repor ts, books, papers, documents, phot ographs, tangible objects, buildings, or places.” Crim.R. 16(B)(3). The parties have a continui ng duty to supplement their disclosures. Crim.R. 16(A). {¶ 11} “Sanctions for a Crim.R. 16 discovery violation are within the discretion of the trial court and shoul d be imposed equally, without regard to the status of the offending party.” State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 20. “A trial court must inquire into the circumstan ces surrounding a discovery rule violation and, when deciding whether to impose a sanction, mu st impose the least severe sanction that is consistent with the purpose of the rules of discovery.” Lakewood at paragraph two of the syllabus. The Supreme Court has identified thr ee factors that a trial court should consider in exercising that discretion when the discovery violation is committed by the State: (1) whether the failure to disclose was a w illful violation of Crim.R. 16, (2) whether5 foreknowledge of the undisclose d material would have be nefitted the accused in the preparation of a defense, and (3 ) whether the accused was prejudiced. Darmond at ¶ 35, citing State v. Parson , 6 Ohio St.3d 442, 453 N.E.2d 689 (1983). {¶ 12} As the Supreme Court of Ohio determined: “Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo , would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result. AAAA Enterprises, Inc. v. River Place Community Redevelopment , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 13} Rieske chose to testify in his ow n defense at trial. During his cross-examination, Rieske denied that he wa s wearing a black hoodie when he was arrested for attacking Lisch. The following exchan ge occurred between the State and Rieske: The State: When you were arreste d, you were wearing a black hoodie, weren’t you? Rieske: No. Q: Are you sure about this?6 A: Yes, sir.
*** Q: You understand at the jail they list what you come in with, don’t they? A: I’m sure they do, yes. Q: Still gonna go with you weren’t in a black hoodie when they arrested you?
A: I was not in a black hoodie when they arrested me, no. After Rieske finished testifyi ng, defense counsel requested th at a short conference be held outside the hearing of the jury. The trial c ourt granted defense couns el’s request, and the jury was removed from the courtroom. At th at point, the following exchange occurred between the State, defense counsel, and the trial court: The Court: Court is back on record [in] 13-CR-0297, State versus Shaun Rieske. The Court has been informed that the State plans on calling a rebuttal witness. [Defense Counsel], you asked to put something on the record before that was done. Defense Counsel: That’s correct, Your Honor. I’ve received a three-page document from the prosecutor that called “Inmate Property Received.” Documents that I’ve not received in discovery. I presume that the purpose of this document and the witn ess who was also not disclosed is to show that Mr. Rieske had a black zip-up hoodie when he was booked in the jail. This is not rebuttal material. This is case in chief sort of material that I7 should have had. The Court: State wish to respond? The State: Yes, Your Honor. I first became aware late Monday afternoon that [Rieske] may have been arrested in a black hoodie. I didn’t get a chance to check that out Monday. I did make a phone call yesterday; and I can’t tell you what time it was. I talked to the command center person. They quickly looked it up on the computer and it was, in fact, the case that Mr. Rieske was arrested in a black zi p-up hoodie, white shirt, and jeans. I did not disclose that to the Defense. I fully assumed that the Defendant would own up to that ; but he didn’t . Only when he testified, and I wasn’t even certain he was gonna te stify, did it become appare nt to me that that was gonna be a rebuttal issue. What I ha d prepared for rebuttal, up until today, was the possibility of putting [Springfield Police Officer] Paul Herald back on the stand, depending on who took th e witness stand. And since Jerry Blair did not take the witness stand, I se nt Paul Herald home or asked him to stay until I had decided. So today is when I scrambled to get [Springfield Police Intake-Officer] Mr. Gonzalez available if I needed him. The Court: I’m going to allow the rebuttal testimony. I’ll have the jury brought back in. Is your witness here? The State: He’s outside. Judge, to be – I think this will go correctly; but I also have the jail custodian of r ecords here, Angie Lyons, in case I want to put the actual records in.[Cite as State v. Rieske , 2014-Ohio-3643.] Defense Counsel: Well, again, just fo r the record, the fact that the prosecutor learned of it before the trial starts is even more reason to keep it out now. This is not rebuttal material. He was aware of it before we started this morning, and so I just renew my objection. The Court: So noted. {¶ 14} The State argues that Officer Gonzalez was a rebuttal witness since there was cross-examination of Ries ke by the prosecutor questioning whether he was wearing a black hoodie when he was arreste d. “Rebuttal evidence is that which is given ‘to explain, refute, or disprove new facts in troduced by the adverse party.’” State v. Wright , 1st Dist. Hamilton No. C-080437, 2009-Ohio -5474, at ¶56, citing State v. McNeill , 83 Ohio St.3d 438, 446, 1998-Ohio-293, 700 N.E.2d 596. Lisch testif ied that at the time of the attack, Rieske was wearing a black hoodie. We recogniz e that the State could have offered Officer Gonzalez’s testimony regarding the black hoodie in its case in chief in order to bolster Lisch’s identification of Rieske , since he described his assaila nt as wearing a black hoodie. However, the State was not required to do so. Although Rieske’s arrest was the same day, it occurred several hours after the assault, ample time to change his clothes. We also recognize the general rule that “[e]vidence admissible in the prosecu tion’s case-in-chief *** [cannot] be reserved for rebuttal to a void the [discovery/disclosure] rule.” State v. Musselman , 2d Dist. Montgomery No. 22210, 2009-Oh io-424, at 13 (internal citations omitted). In our view, however, this is not what occurred here since the evidence was adduced to impeach Rieske’s credibility regardin g his contention that he was not wearing a black hoodie at the time of the arrest. {¶ 15} “The criterion for determining whethe r the State should have provided the9 name of a witness called for re buttal is whether the State reas onably should have anticipated that it was likely to call the witness, whether during its case in chief or in rebuttal.” State v.
Lorraine , 66 Ohio St.3d 414, 423, 613 N.E.2d 212 (1993), citing State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978); see also State v. Bowshier , 2d Dist. Clark No. 2008 CA 101, 2009-Ohio-6387. In the instant case, th e State asserted that it became aware on Monday, September 9, 2013, two da ys before the trial began, that Rieske was wearing a black hoodie when he was arrested. Obviously, the State could not pr edict whether Rieske would testify at trial, and it certainly had no reas on to believe that he w ould deny that he was arrested in a black hoodie on the day of the a ttack. The State contended that it “assumed that the Defendant would own up to” wearing a black hoodie at the time he was arrested. Only after Rieske testified th at he was not wearing a black hoodie when he was arrested did the State move the trial court to allow Officer Gonzalez to testify for impeachment purposes.

{¶ 16} The question, therefore, is not whethe r the State should have disclosed this witness and the intake documentation prior to trial, but rather whether the court abused its discretion in permitting Officer Gonzalez to testify. Bowshier, at ¶ 70. Here, the court accepted the prosecutor’s explanation and there is no evidence of bad faith. {¶ 17} We note that it is difficult to as certain how foreknowledge of Officer Gonzalez’s testimony and the intake document would have benefitted Rieske in the preparation of his alibi defense. At the time the evidence was admitted and Officer Gonzalez permitted to testify, Rieske could have made a motion for a continuance, but failed to do so. Although under the circumstances herein, no continuance would have been10 warranted, as the testimony cannot be characterized as a surprise. Rieske’s defense at trial was that he was at his boss’ house all night a nd did not travel to Lisch’s house and attack him. Rieske’s alibi is not contradicted by Officer Gonzalez’s testimony or the information contained in the intake sheet. Officer Gonzalez’s testimony was limited to the fact that Rieske was wearing a black hoodie when he wa s arrested and booked for the attack on Lisch. Neither Officer Gonzalez’s testimony nor the intake sheet had any detrimental effect on the viability of Rieske’s alibi. Significantly, Ri eske cannot claim surprise as he, more than anyone, should have known the fact that he was arrested in a black hoodie. {¶ 18} “‘The purpose of discovery rules is to prevent surprise and the secreting of evidence favorable to one party. ’ Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3. In other words, a primary goal is to prevent gamesmanship. State v. Howard (1978), 56 Ohio St.2d 328, 333. The overall purpose of the discovery rules, however, is to produce a fair trial. Papdelis , 32 Ohio St.3d at 3. Counsel should ma ke every effort to anticipate the evidence that will be needed at trial and obtain it in a timely manner.” Bowshier , at ¶ 72. Here we cannot conclude that there was gamesmanship nor surprise. Accordingly, we do not find any discovery infraction in the rebu ttal use of the intake sheet and Officer Gonzalez’s testimony. Rieske was not denied a fair trial, and the trial court did not abuse its discretion. {¶ 19} Rieske’s first assignme nt of error is overruled. {¶ 20} Rieske’s second assignment of error is as follows: {¶ 21} “TRIAL COURT IMPROPERLY ADMITTED EVIDENCE OF APPELLANT’S CONVICTION FOR UNAUTHORIZED USE OF A MOTOR VEHICLE11 FOR IMPEACHMENT PURPOSES.” {¶ 22} In his second assignment, Rieske argu es that the trial court erred when it permitted the State to introduce evidence of his prior misdemeanor conviction for unauthorized use of a motor vehicle, in vi olation of R.C. 2913.03. Specifically, Rieske asserts that this offense is not a crime of dishonesty, and therefor e was not admissible for impeachment purposes. {¶ 23} Evid. R. 609 states in pertinent part: (A) For the purpose of attacking the credibility of a witness:
*** (3) notwithstanding Evid. R. 403(A), but subject to Evid. R. 403(B), evidence that any witness, including an accused, having been convicted of a crime is admissible if the crime invol ved dishonesty or false statement, regardless of the punishment and whethe r based upon state or federal statute or local ordinance. (B) Time Limit Evidence of a conviction under this ru le is not admissible if a period of more than ten years has elapsed sin ce the date of the conviction *** . {¶ 24} Evid. R. 609 must be read in conjunc tion with Evid. R. 403(B), which states that “[a]lthough relevant, evidence may be excl uded if its probative va lue is substantially outweighed by considerations of undue delay, or needle ss presentation of cumulative evidence.” {¶ 25} Under Evid. R. 609, a trial court has broad di scretion to determine the extent12 of the admissibility of prior c onvictions for impeachment purposes. State v. Brown , 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, at ¶ 27. In determining whether prior convictions should be admitted or whether the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the i ssues or of misleading the jury, the trial court should consider the following factors:

 (1) the nature of the crime, (2) recency of the prior conviction, (3) similarity between the crime for which there wa s a prior conviction and the crime charged, (4) importance of the defendant's testimony, and (5) centrality of the credibility issue.

 State v. Goney , 87 Ohio App.3d 497, 622 N.E.2d 688 (2d Dist.1993). {¶ 26} During the State’s cross-examination of Rieske, the following exchange occurred: The State: How about 2008? Were you c onvicted of unauthorized use of a motor vehicle? Defense Counsel: I object. That’s not an impeachable offense. The State: Listed as a theft offense in the Revised Code. The Court: Overruled. Rieske: I do not recall. I mean it’s b een a long time ago. I don’t recollect. Defense Counsel: I would make an objec tion, Your Honor. It’s not – it’s a misdemeanor. It’s not a crime of dishonesty. The Court: Approach the bench, please.
*** (Bench conference held out of the hearing of the jury)
***13 The Court: Unauthorized use of a motor vehi cle is a misdemeanor. It is, however, a theft offense; and from the date I’m told, this has occurred within ten years. So it is admissible. Do you have any documentation regarding it? The State: I didn’t pull it. I thought he would admit to it, but I looked it up in municipal court. Defense Counsel: It’s not a crime of dishonesty. The Court: It’s a theft offense which, by de finition, is a crime of dishonesty or goes toward veracity; but it is admissible. Defense Counsel: Well, I disagree. So....... The Court: You will have more oppor tunities. Thank you, gentlemen.
*** (Bench conference concluded)
*** The Court: Continue, please.
*** The State: What’s your social security number? Rieske: ***-**-****. Q: Date of birth? A: 06/23/1986. Q: Full name? A: Shaun Andrew Rieske. Q: Now, in 2008 are you saying you do not have that convicti on or you just don’t14 recall? Defense Counsel: Object. The Court: Overruled. Rieske: I do not recall. 1 {¶ 27} R.C. 2913.01(K)(1) defines unauthorized use of a motor vehicle, under R.C. 2913.03, as a theft offense. “Under Ohio law, ‘dishonesty’ * * * has been interpreted to include theft.” State v. Carlisle , 2d Dist. Montgomery No. 13901, 1994 WL 645989 (November 16, 1994). Thus, evidence of Rieske ’s 2008 conviction for unauthorized use of a motor vehicle was admissible under Evid. R. 609(A)(3) for the purpose of attacking his credibility. State v. Murley , 2d Dist. Champaign No. 08-CA-26, 2009-Ohio-6393, at ¶ 8. Evidence of a crime that involves dishonesty is admissible for such a purpose, and theft is such a crime. Id

. {¶ 28} We also note that in its final instructions, the trial court properly restricted the jury’s use of the prior-conviction evidence to considerations of th e weight and credibility they ought to give Rieske’s testimony. Specifically, the trial court gave the following instruction to the jury:

1 Although the State failed to introduce a certified copy of the judgment of conviction against Rieske for unauthorized use of a motor vehicle, we note that his PSI contains information which establishes that on July 14, 2008, he was convicted of said offense in Case No. 08 CRB 2856. The better practice would be for the State to have obtained a certified copy of the judgment entry of conviction for use at trial for impeachment purposes. Testimony was introduced that the De fendant was convicted of a prior criminal act. This testimony may be considered for the purpose of helping15 you to test the credibility or weight to be given his testimony. It cannot be considered for any other purpose. {¶ 29} In rejecting a defendant’s argument that the prosecutor improperly used prior-conviction evidence, we have previously f ound that “[the] instruction ensured that the jury would use the prior convictions solely for testing the credibility of the witness, which is an acceptable use under Evid.R. 609.” Murley, at ¶ 21, citing State v. Owings, 2d Dist. Montgomery No. 21429, 2006-Ohio-4281 at ¶77. “The jury,” we said, “is presumed to follow instructions it is given.” Id . Accordingly, we find that th e trial court did not abuse its discretion when it permitted the State to intr oduce evidence of Rieske’s prior misdemeanor conviction for unauthorized use of a moto r vehicle, in violation of R.C. 2913.03. {¶ 30} Rieske’s second assignme nt of error is overruled. {¶ 31} Rieske’s third assignment of error is as follows: {¶ 32} “THE EVIDENCE DID NOT SUPPORT A CONVICTION FOR FELONIOUS ASSAULT.” {¶ 33} In his third assignment, Rieske argues that the trial court erred when it overruled his Crim. R. 29 motion for acquittal. Rieske also asserts that the jury verdict finding him guilty of felonious assault was against the manifest weight of the evidence. {¶ 34} Crim. R. 29(A) states that a court shall order an entry of judgment of acquittal if the evidence is insufficient to su stain a conviction for th e charged offense. “Reviewing the denial of a Crim. R. 29 motion therefore requires an a ppellate court to use the same standard as is used to revi ew a sufficiency of the evidence claim.” State v. Witcher , 6th Dist. Lucas No. L-06-1039, 2007-Ohio-3960. “I n reviewing a claim of insufficient16 evidence, ‘[t]he relevant inqui ry is whether, after reviewin g the evidence in a light most favorable to the prosecution, any rational trie r of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” (Citations omitted). State v. Crowley , 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12. {¶ 35} “A weight of the evidence argument challenges the believability of the evidence and asks which of the competing infe rences suggested by the evidence is more believable or persuasive.” State v. Cassell , 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 46. When a conviction is challenged on appeal as being against the manifest weight of the evidence, “ ‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a ne w trial ordered.’ ” State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 36} In the instant case, the State was required to prove each and every element of felonious assault with a deadly weapon, pursu ant to R.C. 2903.11(A)(2), which states in pertinent part: (A) No person shall knowingly: (2 ) [c]ause or attempt to cause physical harm to another *** by means of a deadly weapon ***. {¶ 37} R.C. 2901.22(B) defines “knowingly” as follows: A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a cer tain result or will probably be of a17 certain nature. {¶ 38} “Deadly weapon” is defined in R.C. 2923.11(A) as follows: Deadly weapon means any instrument, device, or thing capable of inflicting death, and designed or speci ally adapted for use as a weapon, or possessed, carried, or used as a weapon. {¶ 39} Initially, we note that Rieske contends that there was insufficient evidence to convict him of felonious assau lt, and his Crim. R. 29 motion for acquittal should have been granted. The argument in Rieske’s third assignment, however, almost exclusively focuses on his contention that his conviction was agains t the manifest weight of the evidence. Specifically, Rieske presented an alibi defense at trial wherein he attempted to establish that he did not have any contact with Lisch on th e morning of April 11, 2013. In fact, Rieske adduced evidence through his own testimony and that of his employer’s wife, Susan Blair, that he spent the night at his employer’s reside nce. Blair testified th at when she fell asleep on the sofa between 11:00 p.m. and 12:00 a.m ., Rieske was at her house playing video games with her husband and brothe r. The brother is the ex-boyfriend of Lisch’s girlfriend. Blair testified that when she woke up that mo rning between 5:30 a.m. and 6:00 a.m., Rieske was still present at her house. However, Lisch testified that Rieske attacked him with a baseball bat at appr oximately 4:30 a.m. outside of his house while he was letting his dog out. Thus, at the time of the attack, Blair woul d have been asleep and unable to account for Rieske’s whereabouts. {¶ 40} Blair further testified that her home is equipped with an alarm system, and it would have to have been turned off if somebody left the house. Blair also testified that even18 though Rieske sleeps over at her house often, he does not know the code to alarm system. Nevertheless, no evidence was adduced at trial that the alarm system had, in fact, been activated during the period of time in question. Rieske testified that he did not have a driver’s license, and it would ha ve been impossible for him to have walked to Lisch’s house and back prior to Blair waking up at 5:30 a.m. However, simply because someone does not have a driver’s license does not mean that the person cannot drive a motor vehicle. {¶ 41} More importantly, Lisch unequivocally testified that Rieske was the individual who attacked him w ith a baseball bat out side of his house at 4:30 a.m. Any disparity in his description of the height and weight of assailant and Reiske’s is minimal. Lisch testified that Rieske hit him several times with the bat and then ran away. This conduct constitutes felonious assault. Thus, a review of th e record convinces us that the State’s evidence, taken in its entirety, was sufficient to sustain Ri eske’s conviction for felonious assault with a deadly weapon. Additionally, Lisch’s testimony alone was sufficient to overrule a Crim. R. 29 motion. {¶ 42} Furthermore, Rieske’s conviction is not against the manifest weight of the evidence. The credibility of the witnesses and the weight to be given their testimony were matters for the court to resolve. Although Ri eske testified on his ow n behalf and provided an alibi for his whereabouts on the morning of April 11, 2013, it was up to the jury to determine whose testimony to credit. Accordingly, the jury did not lose its way simply because it chose to believe the evidence provided by the State’s witnesses, including Lisch’s own testimony. Having reviewed the entire r ecord, we cannot clearly find that the evidence weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.[Cite as State v. Rieske , 2014-Ohio-3643.] {¶ 43} Rieske’s third assignme nt of error is overruled. {¶ 44} Rieske’s fourth and final assign ment of error is as follows: {¶ 45} “THE CUMULATIVE EFFECT OF THE ERRORS DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHTS AND RIGHT TO A FAIR TRIAL.” {¶ 46} In regards to Rieske’s cumulative error argument, “separately harmless errors may violate a defendant’s right to a fair trial when the errors are considered together. State v. Madrigal , 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52. In order to find ‘cumulative error’ present, we must first find that multiple errors were committed at trial. Id

. at 398, 721 N.E.2d 52. We must then find a reas onable probability that the outcome of the trial would have been different but for the co mbination of the separately harmless errors. State v. Thomas , Clark App. No. 2000- CA-43, 2001-Ohio-1353.” State v. Kelly , 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 33. “Where no individual, prej udicial error has been shown, there can be no cumulative error. State v. Blankenship (1995), 102 Ohio App.3d 534, 557, 657 N.E.2d 559.” State v. Jones , 2d Dist. Montgomery No. 20349, 2005-Ohio-1208, ¶ 66. {¶ 47} In light of our foregoing analysis, we find that Rieske has failed to establish that any errors occurred in the instant case. State v. Moreland , 50 Ohio St.3d 58, 69, 552 N.E.2d 894, 905 (1990). Thus, we fail to see how the absence of error can constitute cumulative error. Id

. {¶ 48} Rieske’s fourth and final a ssignment of error is overruled. {¶ 49} All of Rieske’s assignments of error having been overruled, the judgment of the trial court is affirmed.

. . . . . . . . . .[Cite as State v. Rieske , 2014-Ohio-3643.] FROELICH, P.J., concurring: I. Jail Records Testimony {¶ 50} The evidence regarding what Rieske was wearing when admitted to the jail not only attacked his credibility; it also was substantive evidence that he was wearing the same clothing as the assailant was described as wearing. The State was aware of this inculpatory evidence before the trial, but di d not inform the defendant. Rather, when Rieske testified, it used the evidence both substa ntively and to imply that he lied about his clothing so he probably lie d about his alibi as well. {¶ 51} The jail records, in this situation, c onstituted “reports from peace officers” in Crim.R.16(B)(6) and should have been disclo sed prior to trial. For example, in State v.
Davis , 10th Franklin Dist. No. 08AP-443, 2009- Ohio-1375, the trial court admitted the testimony of the county jail record keeper a nd jail visitation records that had not been provided to the defendant before trial. The parties and the court agreed that the record keeper’s name and the documents were subject to Crim. R. 16. Id . ¶ 24. The question was whether the court appropriately resolved the prosecution’s failure to comply with the requirement. {¶ 52} Citing State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, at ¶ 131, the appellate court he ld that to be reversible e rror, the violation must be willful and prejudicial to the defense, and that the disclosure prior to trial would have aided the accused’s defense. Davis, ¶ 25. {¶ 53} Rieske knew what he was wearing wh en arrested, and has not shown how advanced disclosure would have aided his defense. Hypotheti cally, he could argue that he would not have taken the stand, but he was making an alibi defens e; or (as suggested at oral21 argument) that he would have been more exp licit in a description of what he was wearing (which he could have done on redirect). The trial court’s resolution of this issue did not constitute error. II. Prior Conviction Testimony {¶ 54} There is nothing on the record that demonstrates the defendant was ever convicted of unauthorized use of a vehicle. {¶ 55} Rieske said he could not recall such a 2008 conviction; the prosecutor then adduced the defendant’s date of birth and social security numbe r, but never attempted to tie this identifying information to any convicti on. That is until closing argument when the prosecutor argued, “He can’t even remember whet her he’s been convicted of a certain crime or not, but this Judge is gonna tell you that th eft offense that he ow ned up to, he remembers that one and you can use that to determine his credibility.” {¶ 56} The defendant, on direct, acknowledged that he had a shoplifting conviction from Wal-Mart, but the prosecutor’s argument inferred to the jury that it could speculate that there was at least one additi onal conviction, when there is nothing on the record that demonstrates the defendant was ever convicted of unauthorized use of a motor vehicle or any other offense. {¶ 57} Crim.R. 16(B)(2) requires that th e prosecutor provide a copy of any criminal record of the defendant. We cannot tell from the record on appeal whether this was provided and perhaps trial c ounsel did not bring it out at the same time as the shoplifting charge because counsel believed the unauthorized use charge was otherwise not usable for impeachment.[Cite as State v. Rieske , 2014-Ohio-3643.] {¶ 58} Given that there was a prior theft conviction and there was no objection to the court’s instructions, I agree that this a ssignment is controlled by Evid.R. 609(A)(3) and 403(B) and is not well taken. Th e remarks of the prosecutor, if error, were harmless beyond a reasonable doubt.

. . . . . . . . . . HALL, J., concurring: {¶ 59} I agree with the reasoning, analysis and result of the majority opinion. I disagree with paragraph 51 of Judge Froelich’s concurring opi nion and write se parately to explain so that silence will not be construed to be acquiescence. {¶ 60} The assailant in this felonious assa ult was described as wearing a black hoodie. The record reflects that trial be gan on Wednesday September 11, 2013. On Monday afternoon, September 9 th , the prosecutor learned that the de fendant “may have been arrested in a black hoodie.” (T. ____) “I didn’t get a ch ance to check that out Monday. I did make a phone call yesterday [Tuesday September 10 th ] * * * * They quickly looked it up on the computer and it was, in fact, the case that Mr . Rieske was arrested in a black zip-up hoodie * * * *” Id. The State did not introduce the fact that Rieske was arrest ed in a black hoodie in their case in chief. They also did not introduce this fact during the defense case either because when the defendant testified, and th e State asked him whether he was arrested wearing a black hoodie, he speci fically denied he was wearin g a black hoodie when arrested. It was thereafter, upon rebuttal, that the Stat e requested, and was a llowed, to introduce the evidence from jail booking records that the de fendant was booked into jail wearing a black hoodie. {¶ 61} The result in this case hinges upon the determination that the trial court’s23 allowance of the introduction of the jail booking records did not constitute reversible error, either because it was 1) not an abuse of discre tion (lead opinion in which I join) or 2) that the prosecutor’s action was not willful or prej udicial to the defendant (concurring opinion, a point upon which I agree). Neither of those conc lusions requires a deter mination that the jail booking records constitute “reports from peace offi cers” as indicated in paragraph 51 of the concurring opinion. Moreover, I c onclude that routine records ma intained by a jail are NOT “reports from peace officers” as contemplated by Crim. R. 16. Initially, I do not believe that a non-deputy jail employee is a “peace officer.” See, e.g. , R.C. 109.71(A) or 2935.01(B). Furthermore, in my view “reports from peace officers” is intended to encompass arrest, incident, accident or investiga tive type reports typically produced to document those events and often containing a narrative description of the officer’s ac tivities. Booking records of a jail, or records of who an inma te has for visitors, or what phone numbers they call, are not “reports from peace officers.” Those records ma y qualify as “documents” required to be provided to the defendant by Cr im. R. 16(B) if “intended for use by the prosecuting attorney as evidence at the trial,” but they are records, not reports. {¶ 62} Finally, in evaluating whether the tr ial court’s admission of the jail booking records in this case was an abuse of discre tion I would emphasize that a trial is often described as a search for the truth. In this cas e, when it became apparent that the defendant lied about a relevant fact, it was abundantly reasonable to a llow introduction of previously un-exchanged documentary evidence directly c ontrary to his fabrication.

. . . . . . . . . .24 Copies mailed to: Ryan A. Saunders Jon Paul Rion Nicole Rutter-Hirth Hon. Richard J. O’Neill