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Date: 12-04-2020

Case Style:


Case Number: 9-19-82

Judge: William R. Zimmerman


Plaintiff's Attorney: Nathan R. Heiser

Defendant's Attorney:

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Lima, OH - Criminal defense lawyer represented defendant William A. McDuffie with appealing his October 31, 2019 sentence of the Marion County Court of Common Pleas.

{¶2} This case arose after the MARMET Drug Task Force (“Task Force”)
obtained and executed a search warrant at McDuffie’s residence in Marion, Ohio on
January 11, 2019. (Doc. No. 45). During the search of McDuffie’s bedroom, the
Task Force discovered 24.12 grams of crack cocaine located inside a plastic baggie
hidden in a plastic container. (Id.). Further, during the search, Kayla Hamm
(“Hamm”), McDuffie’s girlfriend, was searched yielding the discovery of a cellphone and $1,089 in cash thought to be the proceeds of illegal-drug sales. (Id.).
(See PSI).
{¶3} On January 24, 2019, the Marion County Grand Jury indicted McDuffie
and Hamm (in a joint indictment) on one count of Possession of Cocaine in violation
of R.C. 2925.11(A), (C)(4), a second-degree felony. (Doc. No. 2). McDuffie’s
indictment included a forfeiture specification as to property under R.C. 2941.1417
and R.C. 2981.02.1
(Doc. No. 2). On January 28, 2019, McDuffie appeared for
arraignment and entered a plea of not guilty. (Doc. No. 5).

Hamm ultimately plead guilty to Possession of Cocaine, a fourth-degree felony. (Oct. 9, 2019 Tr. at 143-
Case No. 9-19-82
{¶4} On October 9, 2019, McDuffie’s case proceeded to a jury trial, where
he was found guilty of Possession of Cocaine. (Doc. No. 64). At McDuffie’s
sentencing hearing, the State moved to dismiss the forfeiture specification in the
indictment, which the trial court granted. (Doc. No. 67). Thereafter, the trial court
sentenced McDuffie to a mandatory-prison term of eight years.2
(Oct. 28, 2019 Tr.
at 13); (Doc. No. 67).
{¶5} McDuffie filed his notice of appeal on November 15, 2019, and he
raises two assignments of error for our review, which we will address separately.
(Doc. No. 71).
Assignment of Error No. I
Appellant’s due process right to a fair trial was violated by the
admission of evidence of other acts that were used to draw an
improper character inference.
{¶6} In McDuffie’s first assignment of error, he argues that the trial court
abused its discretion by permitting the State to use “other acts” evidence against
McDuffie (the accused) which violated his due process right to a fair trial.
Specifically, McDuffie asserts that the trial court erred when it permitted the State
to cross-examine Hamm (a witness) attempting to elicit testimony (from her) that
McDuffie had knowledge that there were drugs in their bedroom.

The trial court further ordered the imposition of a $7,500 mandatory-minimum-drug fine, and McDuffie
received 72 days’ jail-time credit. (Oct. 28, 2019 Tr. at 13); (Doc. No. 67). The trial court later filed a nunc
pro tunc judgment entry correcting a clerical error. (Doc. No. 69).
Case No. 9-19-82
Standard of Review
{¶7} “‘Generally, evidence which tends to show that the accused has
committed other crimes or acts independent of the crime for which he stands trial is
not admissible to prove a defendant’s character or that the defendant acted in
conformity therewith.’” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-
Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d 763, 770 (3d Dist.1993) and
Evid.R. 404. However, “[t]he admissibility of other-acts evidence pursuant to
Evid.R. 404(B) is a question of law.” State v. Hartman, ___ Ohio St.3d ___, 2020-
Ohio-4440, ¶ 22.
{¶8} Accordingly, this Court reviews de novo whether a trial court admitted
improper character evidence and will apply an abuse-of-discretion standard to
evidentiary decisions regarding the admission of other-acts evidence for permissible
purposes. See id. See also State v. Glenn-Culverson, 10th Dist. Franklin No. 16AP265, 2017-Ohio-2671, ¶ 24 (“Thus, a reviewing court will not reverse a trial court’s
evidentiary ruling absent an abuse of discretion that materially prejudices the
affected party.”), citing State v. Issa, 93 Ohio St.3d 49, 64 (2001).
{¶9} “De novo review is independent, without deference to the lower court’s
decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27,
citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147
Case No. 9-19-82
(1992). An abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
However, “if the party wishing to exclude evidence fails to contemporaneously
object at trial when the evidence is presented, that party waives for appeal all but
plain error.” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53,
citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59-60, State v.
Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir,
2d Dist. Montgomery No. 22239, 2008-Ohio-1984, ¶ 19.
{¶10} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley
at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “A court
recognizes plain error with the utmost caution, under exceptional circumstances,
and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist. Hardin No. 6-
1414, 2015-Ohio-2977, ¶ 63, citing State v. Saleh, 10th Dist. Franklin No. 07AP431, 2009-Ohio-1542, ¶ 68. Under plain-error review, “[w]e may reverse only when
the record is clear that defendant would not have been convicted in the absence of
the improper conduct.” Id., citing State v. Williams, 79 Ohio St.3d 1, 12 (1997).
{¶11} Initially, we must determine whether McDuffie preserved this issue
for appeal. McDuffie’s argument concerns the testimony of Hamm regarding the
ownership of and (McDuffie’s) knowledge of the drugs concealed in the plastic
Case No. 9-19-82
container found in their bedroom. (Oct. 9, 2019 Tr. at 81, 84-87, 92, 101, 110).
After Hamm testified that she was the sole owner and only person with knowledge
as to the location of the drugs, the State sought to impeach her through the use of
data recovered from the search of her cell-phone (which yielded text messages
between Hamm and McDuffie) that called her testimony into question. (Id. at 114-
115). Notably, McDuffie objected to the admission of the text messages on the basis
that such messages had not been authenticated, were prejudicial, and were stale
evidence. (Id. at 116-123). The trial court overruled McDuffie’s objections. (Id.
at 118, 124). Specifically, the trial court noted that the cross-examination of Hamm
(as to the content of the text messages) was permissible and the State would be given
some latitude because it was being offered as impeachment evidence regarding
Hamm’s credibility for truthfulness or untruthfulness under Evid.R. 608(B) and not
(nonpropensity evidence) under 404(B) as to McDuffie’s knowledge. (See id. at
118-119, 121-123). Importantly, McDuffie never objected to Hamm’s testimony
on any basis after his initial objections. Moreover, the State did not seek to offer
State’s exhibit 30 (the text message printout) into evidence. (Id. at 114-124). As
such, under the facts presented, we will apply plain error in our review. See Crim.R.
{¶12} McDuffie contends that the trial court permitted Hamm to testify to
“other acts” evidence that is inadmissible because it suggests that McDuffie has a
Case No. 9-19-82
propensity or proclivity to commit drug-related crimes. However, because the
testimony was elicited on cross-examination to impeach Hamm (and not the
accused—McDuffie) as to her credibility for truthfulness or untruthfulness, the
evidence falls within the scope of Evid.R. 404(A)(3), 607, 611, 608(B) and not
404(B). See Evid.R. 404(A)(3), 607, 611, and 608(B). See also Evid.R. 616(A),
(B). (Oct. 9, 2019 Tr. at 118-119, 121-123).
{¶13} Evid.R. 607 states in pertinent part:
The credibility of a witness may be attacked by any party except that
the credibility of a witness may be attacked by the party calling the
witness by means of a prior inconsistent statement only upon a
showing of surprise and affirmative damage. This exception does not
apply to statements admitted pursuant to Evid.R. 801(D)(1)(A),
801(D)(2), or 803.
Evid.R. 607(A). “‘Cross-examination shall be permitted on all relevant matters and
matters affecting credibility.’” State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-
Ohio-5555, ¶ 73, quoting Evid.R. 611(B). Under Evid.R. 608, the credibility of a
witness may be attacked through opinion, reputation, and specific instances of
conduct evidence as to the character of the witness for truthfulness or untruthfulness.
See Evid.R. 608. Moreover, and relevant to the facts presented, under Evid.R. 616,
a witness may be impeached as to bias (motive to misrepresent), sensory or mental
defect (inability to remember the events), and specific contradictions within certain
limitations. See Evid.R. 616 (A)-(C).
Case No. 9-19-82
{¶14} Here, the State attacked the credibility of Hamm on cross-examination
under Evid.R. 608 and 616. (See Oct. 9, 2019 Tr. at 118-119, 121-123).
Notwithstanding the permissibility of such an attack on a witness’ credibility under
Evid.R. 608(B), Evid.R. 403(A) would mandate exclusion of this type of relevantcharacter evidence “if its probative value is substantially outweighed by the danger
of unfair prejudice, of confusion of the issues, or of misleading the jury.”3

{¶15} However, and important to this discussion, Hamm testified that the
large quantity of crack cocaine (24.12 grams) seized was for her exclusive-personal
use and that McDuffie was not aware that she used crack cocaine or that the crack
cocaine was located in their bedroom. (See Oct. 9, 2019 Tr. at 87-88, 101, 110).
Here, the State’s line of questioning (of Hamm) attacked Hamm’s credibility, since
such evidence indicated that McDuffie was aware that Hamm possessed the drugs,
and that such drugs were not for Hamm’s exclusive-personal use. (See id.). As a
consequence, the jury was free to conclude that since Hamm was not credible
(because she was untruthful as to McDuffie’s knowledge of her drug use and the
purpose of her possession) perhaps the remainder of her testimony lacked any
indicia of truthfulness. See State v. Schwegmann, 1st Dist. Hamilton No. C-180053,
2018-Ohio-3757, ¶ 11, citing State v. Hussein, 1st Dist. Hamilton No. C-020155,
2003-Ohio-1369, ¶ 8, citing State v. Boggs, 63 Ohio St.3d 418, 421 (1992).

Because McDuffie does not challenge whether Hamm’s testimony is relevant or admissible as such, we will
not address the applicability of Evid.R. 401 and 402.
Case No. 9-19-82
{¶16} Moreover, Hamm was subject to impeachment by the State as to bias
(i.e., her motive to misrepresent the ownership of the drugs as well as McDuffie’s
knowledge of the drugs because of their relationship) and to a sensory or mental
defect (for her inability to remember certain text messages with McDuffie despite
being able to recall other unrelated text messages). (See Oct. 9, 2019 Tr. at 97-98,
132, 133, 138, 141). See Hussein at ¶ 8-9. Her testimony is not merely contradictory
testimony on collateral issues, but rather, material to the issue presently before the
trial court regarding the truthfulness of this witness. See Boggs at 422.
{¶17} Nevertheless, the trial court admonished the parties to proceed
carefully because of its duty to consider mandatory exclusion under Evid.R. 403(A)
[Trial Court] Again, that being said, I want to caution the
parties that I’m going to continue to weigh the probative
value as compared to the prejudicial effect of any
evidence that might sought to be elicited.
The mere fact that I’m saying that this witness
can be cross-examined does not mean that everything is
now fair game. And I think the Prosecutors know
what I’m saying. Are [sic] well aware of the fact that
the Defendant in this case is not charged with
Case No. 9-19-82
Trafficking, that I’m not, by saying that this witness can
be cross-examined in order to examine potential
inconsistencies or untruthfulness that there may be in
her testimony for the purposes of impeaching her.
That does not mean that I’m saying that the State
would now have carte blanche to go into other things
that may be indicative of trafficking of drugs on the part
of the Defendant. We’re not going to go there. Let me
[sic] abundantly clear about that. So anything further
that we need to address while out of the presence of the
(Oct. 9, 2019 Tr. at 121-122). Notably, McDuffie never objected on the basis that
exclusion was mandatory or discretionary under Evid.R. 403.
{¶18} Thus, upon our review of the record, we cannot conclude that there is
an obvious defect in this trial that affected McDuffie’s substantial rights.
Notwithstanding the foregoing, and even if we were to have concluded otherwise,
McDuffie cannot demonstrate prejudice since Hamm was not able to recall the
content of any of the text messages despite the attempts made by the State to refresh
her recollection. (Id. at 132-133). See Evid.R. 612. Accordingly, McDuffie’s
argument is without merit.
Case No. 9-19-82
{¶19} Moreover, we cannot conclude that the there is any error and certainly
not error that rises to the level of plain error in relation to Hamm’s impeachment by
the State, which has caused a manifest miscarriage of justice warranting a new trial.
Therefore, McDuffie’s first assignment of error is overruled.
Assignment of Error No. II
Appellant’s due process right to a fair trial was violated by the
prosecutor’s improper comments regarding the credibility of a
witness during closing argument.
{¶20} In his second assignment of error, McDuffie asserts that during closing
arguments the prosecutor engaged in prosecutorial misconduct, denying him a fair
trial. Specifically, he claims that the prosecutor made a suggestion (during closing
argument) that Hamm while testifying in court, was being intimidated by McDuffie,
and thus, that there was an impermissible inference that jury should find her
testimony not credible.
Standard of Review
{¶21} “The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial
rights.” State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31, citing
State v. Smith, 14 Ohio St.3d 13, 14 (1984). “‘To establish prejudice, a defendant
must show that a reasonable probability exists that, but for the prosecutor’s improper
remarks, the result of the proceeding would have been different. Thus, “[n]ot every
Case No. 9-19-82
intemperate remark by counsel can be a basis for reversal.”’” Id., quoting State v.
Porter, 4th Dist. Meigs No. 10CA15, 2012-Ohio-1526, ¶ 20, quoting State v.
Landrum, 53 Ohio St.3d 107, 112 (1990). “In making this determination, an
appellate court should consider several factors: (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, 102 Ohio App.3d 28, 41 (8th Dist.1995).
{¶22} McDuffie points to the following exchange between the prosecutor
and the jury regarding Hamm’s testimony:
[State of Ohio] I find it kind of interesting when she was on her
direct examination that Mr. McDuffie was staring her
straight in the face and she looked straight back at him.
She seemed deathly afraid of Mr. McDuffie. She
seemed deathly afraid of the people around. And she
seemed like she was trying testify just to please him
(Oct. 9, 2019 Tr. at 170). At the conclusion of the State’s closing arguments, at a
sidebar, the defense moved for a mistrial on the basis that the prosecutor insinuated
to the jury that Hamm was being intimidated by or scared of McDuffie. (Id. at 173).
Case No. 9-19-82
Thereafter, the trial court admonished the prosecutor for his comments, but denied
the defense’s motion for a mistrial. (Id. at 174). Importantly, the trial court gave a
curative instruction to the jury (instructing them to disregard the comments made
by the prosecutor as part of his closing argument) prior to the defense’s closing
arguments. (Id. at 175).
{¶23} Addressing prosecutorial misconduct allegations related to closing
arguments, “[p]arties have wide latitude in their closing statements, particularly
‘latitude as to what the evidence has shown and what inferences can be drawn from
the evidence.’” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-Ohio7085, ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 213. State
v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 159, (“A prosecutor may state
an opinion if based on evidence presented at trial.”). “‘The test regarding
prosecutorial misconduct in closing arguments is whether the remarks were
improper and, if so, whether they prejudicially affected substantial rights of the
defendant.” State v. Rasawehr, 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶
12, quoting State v. Encarnacion, 10th Dist. Franklin No. 16AP-817, 2017-Ohio5530, ¶ 9, citing State v. Smith, 14 Ohio St.3d at 14. “‘A prosecutor’s isolated
comments are not to be taken out of context and given their most damaging
meaning.’” Id. at ¶ 13, quoting Encarnacion at ¶ 10, citing State v. Noling, 98 Ohio
St.3d 44, 2002-Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 U.S. 637,
Case No. 9-19-82
647, 94 S.Ct. 1868, 1873 (1974). “‘Instead, an appellate court must review a closing
argument in its entirety to determine whether prejudicial error occurred.’” Id.,
quoting Encarnacion at ¶ 10, citing Noling at ¶ 94, citing State v. Frazier, 73 Ohio
St.3d 323, 342 (1995).
{¶24} Even if we assume, without deciding, that the prosecutor’s comments
were improper in satisfaction of the first prong of the prosecutorial-misconduct test,
McDuffie cannot establish prejudice here because the trial court gave the jury a
curative instruction which we conclude was sufficient to relieve any prejudice that
McDuffie may have suffered. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,
¶ 170, citing State v. Loza, 71 Ohio St.3d 61, 75 (1994), overruled on other grounds,
(“The trial court’s curative instruction was sufficient to relieve any prejudice.”). As
such, McDuffie cannot establish the second prong of the prosecutorial-misconduct
test under the facts before us.
{¶25} In our review of the record, we cannot conclude that the statements of
the prosecutor made during closing argument are prejudicial error.
{¶26} Accordingly, McDuffie’s second assignment of error is overruled.

Outcome: Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

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