SUP^^^^ ^PM OF OHIO 01-ERK OF QOURT name arro ij[imecr belmont correctional institution u4s-murrox...

IN THE SUPREME COURT OF OHIC?

STATE OF OHIO,

Plaintiff-Appellee,

vs.

HENRY N.HARPER,A638-859

^« ...^Case No

On Appeal from the GUERB5MCounty Court of Appeals

FIFTH Appellate District

C.A. CaseNo. 1 0-CA-44Defendant-Appellant. NUNC PRO TUNC filed on

October 2, 201 3

NOTICE OF .APPEAL OF APPELLANT HENRY N. HARPER

HENRY^-HAP FR A6.1R-859NAME AND NUlAEFR

BELMONT CORRECTIONAL INSTITUTION1NSTIIUTION

P.O.BOX 540 68518 BANNOCK ROADADDRESS

SAINT CLAIRSVILLE,OHIO 43950cI7Y.5TATE &zIP

740-695-5169PHONC

DEFEl`tid7ANT-APPELLAN.T, PRO SE

DANIEL G.PADDEN GUERNSEY COCTNTY PROSECUTORPROSEC.Ui'ORNAME

P.O.BOX 640 139 WEST EIGHTH STREETannassS

CAMBRIDGE,OHIO 43725CIiY,SIAlE &LIP

740-439-2082PHONE

COUNSEL FOR APPELLEE, STATE OF OI-HO

ii

N!f.,,'^V 14 2013:. :

4

01-ERK OF QOURTSUP^^^^ ^P-M OF OHIO

^ rL.E.S '^3`<^^^' s..t't^i^ :'^Q

3"PRE:W' COURT OF OVilO

NOTICE OF APPEAL OF APPELLANT - HENRY tv _ HArzpEg

Appellant HBNRY N. HARPRthereby gives notice of appeal to the Supreme Court of

Ohio from the judgment of the GUERNSEY County Court of Appeals, FTFTH Appellate

District, entered in Court of Appeals Case No.1 0 ca 4 4on OCTOBER 22413•

This case raises a substantial constitutional question, involves a felony, and is of public or

great general interest.

szsxATUxa.

HENRY N HARPER A^3La-35_9xnrotE ANn rnlWca

BELMONMT CORRETC1ONAr, TNSTTTRrrmrnINSTLi UYION

PO BOX 540 6851 8 BANNQCK RnADADDRE35 ....

SAINT CLAIRSVILLE sQ I^ O 4.3950CffY.SIA'IE &LP

DEFENDANT-APPELLANT, PRO SE

IN TBE SUPREME COURT OF OHIO

STATE OF OHIO,Case No.

Plaintiff-Appellee,On Appeal from the GUERNSEY

Vs. . County Court of Appeals_Appellate District

HENRv nz uAnnFU -A63-859 C.A. Case No. 1 0-CA 44

Defendant-Appellant. , NUNC PRO TUNC f i led onOCTOBER 2,2013

lYA1iMVitf'3aN31V171.11r SUTPiJRl Ol a)Ule1SJJ1LTAilN

OF APPELLANT HENRY N HAR1? ^R

HENRY N.HARPER A638-859NAME Arro IJ[IMecR

BELMONT CORRECTIONAL INSTITUTIONu4s-murrox

P.O.BOX 540 68518 BANNOCK ROADA^^RE55SAINT CLAI.RSVILLE,OHIO 43950

cr.y, sA^ &zm

740-695-5169PHON6

DEFENDAa'v'T-APPELLANT, PRO SE

DANIEL G.PADDEN GUERNSEY CQUNTY ROSECUTORFROSEC:iSrORNAbSE.

P(l Rf1X Fi4^1 1^^ ^FCT FTaNPF^ CTRFFj'

AD7RHSs

CAMBRIDGE,OHIO 43725CI:Y,tATE &Z^

740-439-2082

COUNSEL FOR APPELLEE, STATE OF OHIO

CLERK OF QOURTS^^^EME COURT OF OHIO

TABLE OF CONTENTS

Pa-ae No.

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL ...,.CONSTITLTIONAL QUESTION . ... ............................. .................. .... ........

STATEMENT OF THE CASE AND FACTS............... .. .................... .. .................. 798,9

ARGL'ivIENT IN SUPPORT OF PROPOSITION OF LAW ... .. ............................... ....•• ....,...,

10PROPOSITION OF LAW : .. .................... ........................ ............................................... .... ..

..,,11...,MOTION FOR REDUCED NUMBER OF COPIES ................

12................ . .................. ... ...,................ ........ ..... ........,........ .....

CONCLUSION ................... ..................... . . .. .................. . ..

CERTIFICATE OF SERVICE ....... ................ ................. ...................... ..,........1.3......... .

APPENDIX.... . ................................. ,°..°°...14....

Judgment Entry and Opinion, Court of Appeals, GUBNSEY_ County,( DATE ) ..NU.I^C.. PHQ..,7CUNC...^z.1 .2.,20.1.^ .................. ^.5.... A-1

TABLE OF AUTHORITIES PAGE

1.Doty v.Doty 4th District NO.411,1980,WL350992(2/28/1980)---9--2.Dzina v.Celebreeze 108,OHi.o St.3d,385,2006-Ot-Iio-1195,843,N.E^-

2d,1202. ... .........° ... . 9. .

3.Fiore v.White+531,UNited ^States ^225„ (2001)............... ..8..4.Ishmail v.State 54,OHio St.2d,402,377,N.E.2d,500(1978)...... 9..5.Jackson v.Virginia (1979)443,U.S.307,319,99,S.Ct.2781.... 3p4,8.6.Mason v.Hanks 97,F.3d,N34,887(7th Circuit COurt 1996)..... 1.,°8°.7.McDaniel v.F3Rown--U.S.--130 S.Ct.665,673,175,L.Ed.2d,582..1.,.3..8.Olaughlin v.O'Brien 568,F.3d,287(1st Circuit)2009s130•S.Cts1B42

(201Q). ° • '9.Newman v.Metrish543,F.3d,793,(6thhCircuit)2008,130 S.Ct.1134,

(2010) ............. ... . ....................................8..

10•North v.Beighter,112,OHioST:3d,122s2006.OHio •ST^65150858ON^Eo2d,386,7 ...................................................

11.Sandstrom v.MOntanta 442,UNited States,510(1979)........... 8..12.Scioto Bank v.Columbus UNion Stock Yards 120 Ohio,App.55,59,

201 N.E.;2d,227,(1963) ...................................... 9..13.Siddigi v.UNited States 98 F.3d,1427(2n.d Circuit 1999).....8..14.State v.Adams 62,Ohio St.2d,151,404,N.E.2d,144,1980 OHio 9+^

LExis 710 ..° . . ........•15.State v.CHilds(2000)58OHioSte3d^194i20000OHio:298+724.Nge°

2d,781....................... • ° ° °.16.State v.Hooks 92,OHio St.3d,83,2001-OHio_150,748,N.E.2d.528^°Y

(2001) ... .........................°...

17.JermoneMessersAppellant v.Raymdnd ROberts 94-3362 UNitedStates TEnth Circuit 74,F.3d,1009,1996 U.S.App.Lexis 963-1996..8.

TABLE OF CONTENTS

TABLE OF AUTHORITIES PAGE

18.State v.Kulig(1974)37 OHio ST.2d,157,66,OHio OP.2d,351,309 N.E

2d,897,KIDNAPPING O.R.C.2905.01(A)(2) REVERSED........... 9....19.State v.Neiland ............ ...• . ..... ..............9....20.State v.THompkins supra 78 Ohio ST.3d,at 387............3....21.State v.Owens ca,no.15607 9th dist.(1992)Lexis 5486....s..6....22.Ballew v.UNited States 2000 Lexis 21823 ..................b.,..23.State v.Beasley(1984)14,Ohio ST.3d,74,75,14,OHio 511,471,N.E.2

2d,774 TABLE OF STATUES AND LAWS AND RULES . ,.6....

1.OHI0 REVISED CODE 2905.01 KIDNAPPING (A)(1)(2)..... ay$.,2,3'4,7.g

2.OHIO REVISED CODE 2923.13 WEAPONS UNDER DISABILTY...... 2,3P4.,.6.

3.OHI0 REVISED CODE 2923.162 DISCHARGE OF FIREARM........ 2,3.....

4.OHIO REVISED CODE 2921.12 TAMPERING WITH EVIDENCE ...... 2 .......

5.OHIO REVISED CODE 2921.11 PERJURY ..................... ?.4 .......6.OHI0 REVISED CODE 2941.145 GUN SPECIFICATION........... 2,4,5...

7.OHIO REVISED CODE 2921.14 FALSE REPORT OF CHILD ABUSE..3........

8.OHI0 REVISED CODE 2953.23 SECOND POST-CONVICTION RELIEF.2,5,71.

9.OHIO REVISED CODE 2923.21 POST-CONVICTION RELIEF ........ 4 ......10.OHI0 REVISED CODE 2929.14 FELONY SENTENCING............ 4......

11.OHIO REVISED CODE 2929.41 MUTIPULE SENTENCES........... 4......

OTHER STATUES AND RULES

1.UNITED STATES AMENDMENT FOUR ...............................4....2.UNITED STATESA AMENDMENT FIVE ............................. 4.,,,3.UNITED STATES AMENDMENT SIX ............................ 2,4,6...4.UNITED STATES AMENDMENT FOURTEEN ..... . . ..............4,5.OHIO CONSTITUTIONAL ARTICLE 4 SECTION 3(B)3............... 7....6.OHI0 CONSTITUTIONAL ARTICLE 1 SECTION 10 .................. 1.,,,7.GUERNSEY COUNTY COURT CASE NO.85-C-62................ 1.2,3,4,.,,8.GUERNSEY COUNTY COURT OF APPEALS CASE NO.10-CA-44.... L2'4,7.3...

9.DETECIVE SAM WILIAMS COMPUTERIZED CRIMINAL HISTORY.... 4........10.EVIDENCE RULE 602 LACK OF PERSONAL KNOWLEDGE ......... 4 ........11.ERROR SCRIVENERS ........ . ...... .............L,.7.......•12.OHIO JURY INSTRUCTIONS 4-505,505.01(A) ............... 8. .......13.CRIMINMAL RUYLE 29 ACQUITTAL .. . .............. . . ..8........14.FEDERAL RULE CIVIL PROCEDURE 60(a) ................q,,7 ........15.FEDERAL RULE CRIMINAL PROCEDURE 36 ................... 7........

APPENDIX

1.AFFIDAVIT FROM TINA HARPER CONCERNING KIDNAPPING...... 2........

2.POSTCONVICTION REKLEIF O.R.C.2953.23 PAGE 2 VO.7.... 1,2,5,7....

3.BALDWINS OHIO PRACTICE LAWS AND RULES ELEMNTS OF CRIME.3,4.,.2..

4.GUERNSEY COUINTY COURT TRANSCRIPTS PROSECUTOR DANIEL G.PADDEN"S TR.493ELEMENTS OF THE CRIME OF KIDNAPPING O.R.C.2905.01(A)(2).3,,Z,r,

5.GUERNSEY COUNTY COURT TRANSCRIPTS CONCERNING THE TESTIMONY OF

TINA HARPER CONCERNING THE KIDNAPPING.T:R..^2.5 .......... 5,7.......

6.Guernsey County court TRANSCRIPTS TR.318,319......... 3.........

7.GUERNSEY COUNTY COURT TRANSCRIPTS PAGE 324......... a,.5.........

8.GUERNSEY COUNTY COURT TRANSCRIPTS COMPUTERIZED CRINAL...4.2,R. 4.()6-4079.GUERNSEY COUNTY COURT TR.158 MATT SCURLOCK DEPUTY ....... 3 ......

10.GUERNSEY COUNTY COURT TR.367 DEPUTY DUSTIN BEST ........ 3 ......

11.GUERNSEY COUNTY DETECTIVE SAM WILLIAMS INVESTIGATOR NOTES..4..

12.GUERNSEY COUNTY COURT TRANSCRIPT PAGE 281..................3..

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC ORC;REAT GENERAL INTEREST AND INVOLVES A SIJBSTANTIAL C ONSTITUTIONALQIIESTION

This Case is of Great GEneral Public INterest when a JustCourt does not do i ts duty to reveiw a wrongful,unlawful,andunconstitutional conviction that the representives of the Stateand of TRUTH and JUSTICE HAVE caused the State of OHio(taxpayers)to be liable for and the JUstice system is being corrupted bythe complete disreguard for the OHio Constitution and the UNitedStates COnstitution as well as the rights of the American Peopleand the willful and purposeful violation of the Laws of the State

The Fifth District Court of Appeals claims that the mistakesare scrivener's errors which the GUernsey County Court states inthe FINDINGS OF FACT in the Appelalnt's SEcond POst ConvictionRelief O.R.C.2953.23 that the Prosecutor Daniel G.Padden as theBrief of PLaintiff-Appellee provided the INCORRECT,FALSE orQUTRIGHT LIES TO THE Appeal Court in the BRief Filed on May 11,;2011.See enclosed copy of the Page 2 NO.7 of the TRial Court'sFlndings

It is not a clerial error or a typing mistake,when the Opinionwas purposely copied from the Prosecutor's BRief.

The Taxpayers are being cheated by the Fifth District Court ofAppeals as the record clearly shows that the elements of the crimewere never proven or even a victim presented to accuse theAppellant as required by the LAW and OHio COnstityution Article J.SEtion 10 and the UNited States Constitution Amendment Six.

The Indictment included the case N0.85-C-62 which is TWENTY-Five Years old on the I-Iaving WEapons while under Disability CHargewhich is an element for a FIFTH DEGREE FELONY NOT A THIRD DEGREE.

The KIdnapping CHarge is missing the element of O,RC.2905.01(A)(1) and the eleinents for O.R.C.2905.01(A)(2) are not presentedi n the trial court or proven as a matter of record.

The Fifth District COurt of Appeasls never reviewed the recordin this Case of 10-CA _44.THe Fifth District Court of AppeaLSpurpoesely DENIED the Appelalnt-DEfendant Henry N.Harper a DirectAppeal.

The Appelalnt-DEfendant Henry N.Harper filed a Motion to Amendthe Prosecutor's Brief and the Fifth District COurt of AppealsOPinion filed on SEptemeber. 9,2011 on DEcember 20,2011. that wasDENIED.The Fifth District Court of Appeals failed to review therecord as the OPinion so states:

Guernsey COubnty Case NO.2010-Case N0.10-CA_44 NO.28Our review of the constitutional sufficency of evidence to supporta criminal convcition is governed by Jackson v.Virginia(].979)'443,U.Se307,319,99 S.Ct.2781,which requires a court of appeals todetermine whether"after viewing the evidence in the light mostfavorable tot he prosecution,any rational trier of fact could1iame f4:nun^ d th-e-essen ; l elamPn s ofthre_crime be,ycind a .r. asonabledoubt"see also McDaniel v.Brown(2010)---U.S.--130 S.Ct.665,673,:;175 L.ED.2d,582(reaffirming this standard)

Then on Page 9 NO.34 and NO.35 she faciliated the commissionof the felony and the flight thereafter

THe NUNC PRO TUNC is invalid and a complete review of all theFACTS and EVIDENCE must be ordered,The sentence of N0.35 shefaciliated the commission of the felony and the flight thereafterIS ANOTHER DIRECT COPY OF THE PROSECUTOR'S T3RlEF and is not anelement of kidnapping when the victim committed the3 element ofthe kidnapping. THe FIFTH DISTRICT COURT OF APPEALS OPINIONFILED ON SEPTEMEBR 9,2011 is VOID In its entirety and anotherreview of the Case is required in COnstitutional INtterset andthe rights of the naral public.

1.

STATEMENT OF THE CASE AND THE FACTS

The Appellant-DEfendant Henry N.Harper was detained by the^uernsey County Sheriff's DEpartment on May 7,2010 due to anincident that occurred earlier in the day.THe Appellant-DEfendantWife TIna Harper(the KIdnapping victim was detained after coercionby the DEputies for 13 hours in custody).The Appellant-DEfenadntwas charged with Having WEapons under Disability O.R.C.2923.13 inwhich the indictment charged a THIRD degree felony but conatainedthe element of a FIFTH degree felony relying on a TWENTY-FIVEYEAR OLD FOURTH Degree felony being case N0.85-C-62 as containedin COunt ONe of the INdictment.On May 11,the BOnd was set at$105,000.00 thousand dollars and no ten percent.See enclosed copyof Bald.wins OHIo Practice of LAWS and RULES.and the BOnd. Paper.

Then on May 25,2010 the GUernsey County Grand JUry indictedthe Appellant-DEfendant Henry N.Harper on Having WEapons whileunder DIsability O.R.C.2923.13 with a firearm specification afelony of the third. degree even though the Count ONe of theINdictment contained the eleemnt for a FIFTH degree as listingCase NO.85-C-62 a 1985 Fourth DEgree £elony.and tampering withevisdence O.R.C.2921.12(A)(1) a third degree felony COnt twoand Count THree Discharge of firearm on or near a prohibitedpremises O.R.C.2923.162 a first degree misdeMeanor and Count FourKIDNAPPING O.R.C.2905.01(A)(1)(2) even though the INdictmentdid not list the element of (A)(1)which was not presented tot heGRand JUry.AT the Arrraingment on JUne 8,2010 Appellant pleadNOT GUILTY.

After two delays of the Court in the TRial in violation of theAppelalnt-DEfendant`s SPEEDY TRIAL RIGHTS this matter proceededto TRial on OCtober 14 15,2010 almost SIX MONTHS LATER.

The Appellant-DEfenadnt was ILLEGALLY,UNCONSTITUTIONALLY,andWRONGFULLY convicted by DEtective Sam Williams PERJURY O.RC.2921.11 and the Prosecutor Daniel G.Padden FAILED to presenteither element for the charge of KIDNAPPING see TR.493 forProsecutor Daniel G.Padden`s'elemnts of the CRime of KIdnappingand the victim TINA HARPER"s testimont concerning trhe KIdnappingTR.325 and an AFFIDAVIT OF STATEEMNT from TINA HARPER concerningthe kidnapping charge enclosed copy.The TRial Court sentencedthe Appellant DEfendant to EIGHT(8)years of imprisonment.

COunt ONe I1avi.ng WEapons While UNder Disability O.RC.2923.13based on a TWENTY FIVE YEAR OLD FOURTH DEGREE FELONY to T.H`REE(3)YEARS KIDNAPPING with NO VICTIM O.R.C.2905.01(A)(1)(2) TWO YEARSand a THREE YEARS MANDATORY for the FIrearm Specification On theKIdnapping COunt.

Appelalnt-DFEfenadnt filed a timely appeal,which the RECORDwas NEVER REVIEWED as the NUNC PRO-TUNC that was filed onOCtober 2,2013 over TWO YEARS later after a MOtion to Amend wasFiled on DEcember 20,2011 that was DENIED by the FIFTH DoistrictCOurt of Appepals,then the Appelalnt-DEfenadnt filed a SECONDPOST-Convction Relief O.RC.2953.23 On March 14,2012.Which theGUernsey County TRuial Court acknowledged that the State of OHiofiled INCORRECT or FALSE information in the Appellee-PLaintiff°sBRief filed on May 11,2011 in the Direct Appeal,.In Case 10-CA 44.

AS to the degree and convcituions that the Fifth DistrictCourt of Appeals is correcting in the NUNC PRO TUNC filed onOctober 2,2013,the TRial Court failed to address the otherINCORRECT or FALSE stateemnts in the brief as the Fifth Court

of Appeals refuses to address the other INCORRECT or FalseInformation.

2.

STATEMENT OF THE CASE AND THE F'ACTS

IN the NUNC PRO TUNC page 3 which all pages are a direct copyof the Direct Appeal Case iJQ,10-CA_44 NO.5 Prosecutor Daniel G.Padden states "Appellant told his j,rife that he was going toshoot up MR.Ratliff`s truck and when they arrived at the

residence,Appellant put his arm out the window and MRs.Harperheard several gunshots". The POLice REport and Mrs.Harper'sstatement said shot up im the air.And the TRUTH of the matteris that the Appelalnt was Charge and convcited for Discharge ofa Firearm upon a roadway O.R.C2923.162 a misdemeanor of thefirst degree.Mrs.Hsarper testified at the TRial that she nevereven knew that the Appelalnt had a firearm until they arrived atMR.Ratliff's.The Prosecutor's Brief states that she knew he hadthe firearm on the way there,whuich is in comp;lete conflict with

the TRial Court record and actual testimiony SEe TR. Page 1^i H 281NO.6 After this incident appelalnt came into contact with a

friend Robert WEbb,to whom he relayed the information that he A,^q"Just shot at sopme people"(TR.271) WHERE ARE THESE PEOPLE?

RObert Webb also called GUernsey County CHildren SErvicesand made a FALSE REPORT OF CHILD ABUSE OR NEGLECT O.R,C.2921.14

A Case was opened and the FACTS showed that the minor son ofthe Appellant whom Robert Webb told GUernsey County ChildrenSERvices that the child was in the vehicle was actually at theSChool Dance.in another COunty were he attended school.Case wasclosed.

NU.9 Mrs.Harper permitted the deputies to search the residenceBoth GUernsey County Dhputies testified that Mrs.Harper was noteven at the residence when they looked through the house beforeshe even arrived.See TR.158 Matt SCurlock and TR.367 Dustin Best

And Mrs.Harper was threatened and LIED to TR.318-319,and 324Page 4 NO.11: CONVCITED of a felony about twenty-FIve-years

before.Which the INdictment contained the Case number Of 85C-62which would make the Having WEapons while under Disability aFIFTH degree felony not a third degree See Baldwins elements ofCRime enclosed copy.

Page 6:NU.28:Uur review of the constitutional sufficiency ofevidence to support a criminal conviction which is governed byJackson v,Vlrginia(1979)443,U.S.307,319,99,5.CT.2781,which requirresa court of appeals to determine whether"after viewing the evidenceI11i LIGIIT MUST FAVURABLE TUT IiE PROSECUTIQN,ANY RATIUNAL TRIER UFFACT CUULD HAVE FUUND THE ESSENTIAL ELEMENTS UF THE CRINIE BEYUNDA REASONABLE DUUBT"Id.See McDANIEL v.Brown--U.S.--130 S.CT.665,673,175,L.FD.2d,582,(reaffirmimg thisd standard).

See Guernsaey County Prosecutor Daniel G.Padden's establishmentof the elements of kidnapping U.R.C.2905.01(A)(2)TR.493

Pgae 8 N0.32:"to examine the entire record,weigh the evidenceand al1 reasonable inferances,consider the credibility of thewitnesses and determine in resolvin.g conflicts in the evidencethe trier of FACT clearly lost its way and created such amanifestMISCARRIAGE OF JUSTICE THAT THE JUDGEEMNT MUST BE .I2EVERSED.

3.

Page 9 NO.35: she facilitated the commission of the felony andthe flight thereafter THIS IS A DTRECT COPY OF THE PRUSECUTUR's

BRIEF In the DIRECT APPEAL.THE ENTIRE BRIEF IS AN ERROR AS THE

OPINION OF THE FIFTH DISTRIVCT CPOURT OF APPEALS.


The Appelalnt Defenadnt Henry N.Harper cannot address thetotal amount of errors in the trial court and the Fifth DistrictCOurt of Appeals OPinion a review of the record should be orderedin the demands of justice.

The Appelalnt_DEfenadnt filed a timely appeal raisinf thefollowing assignments of error:

1.THE DECISION WAS AGAINST THE SUFFICENCY AND MANIFEST WEIGHTOF THE EVIDENCE.

2.THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY CHARGING THEJURY,

3.APPELLANT WAS DENIED HIS RIGHT BECAUSE OF INEFFECTIVE AASSISTANCE OF COUNSEL,

On November 22,2011,Appell.ant fi_led a Motion for SEntenceREduction DUE TO THE FACT THAT THE HAVING WEAPONS UNDER DISABILITySHOULD BE A FIFTH DEGREE FELONY NOT A THIRD DEGREE AS TOT THEELEMENTS OF THE CRMME SEE BALDWINS OHIO PRACTIE LAWS AND RULESAND THE INDICTMENT CONTAINED THE CASE NO.OF 85-C-62 WHICH IS ANELEMENT FOR A FIFTH DEGREE FELONY.

ON January 19,2012 Appellant filed a Petition for POst-COnviction RElief.on the grounds that the trial COunsel LIndsey KDonehue was INeffective in violation of U.S.SIX and the AppellaNT^Property was ILLEGALLY SEARCHED in violation od U.S.FOUR.and aviolation of U.S.FIVE AND FOURTEEN DUE PROCESS when DEtectiveSam Williams committed PERJURY O.R.C.2921.11 wben testifying thathe had a copy of a COMPUTERIZE71 CRIMINAL HISTORY showing a 1985felony of a fourth degree on the Appellant See TR.405,406,407 andINvestigator NOtes,THi.s information was not in the Discovery.and thew chaarges were against the manifest weight of the evidencethaT THE FIFTH District Cotirt of Appeals would hasve found if theCourt would have reviewed the record.

Appellant appealled the trial court's DENIAL raising the folow-ing Issues:

1.HAVING WEAPONS WHILE UNDER DISABILITY:IMPR®EPR DEGREE OFFELONY,

2.PERJURY OHIO REVISED CODE 2921,11 EVIDENCE RULE 602:DECTECTIVESAM WILLIAMS COMMITTED PERJURY AT TRIAL UNDER OATH WHEN HE TESTIFIEDTHAT HE AHD A COPY OF A COMPUTERIZED CRIMINAL HISTORY ON THEAPPELLANT HENRY N.HARPER SHOWING A 1985 FELONY CONVICTION ALSOVIOLATING EVIEEDENCE RULE BX602 LACK OF PERSONAL KNOWLEDGE,

3.CONSECUTIVE SENTENCING OHIO REVISED CODE 2929.41 WAS IMPROPERDUE TOT HE FAT OF JUDICIAL FACT -FINDING MUST OCCUR BEFORECOMNSECUTIVE SENTENCES MAY BE IMPOSED UNDER O.R.C.2929.14(E)(4).

4,KIDNAPPING OHIO REVISED CODE 2905.01 NO ELEMENTS OF THE CRIMEOF KIDNAPPING WERE PROVEN AT TRIAL.THERE IS NO KIDNAPPING VICTIM.

5.GUN SPECIFICATION OHIO REVISED CODE 2941.145 GUN SPECIFICATIONOF O.R.C.is improepr and contrary to law.none of THE ELEMENTS FORA GUN SPEC.O.R.C.2941.145 WERE PROVEN AT THE TRIAL.

Appellant also appealesd ther TRial Court's DENIAL ofthe POst-COnvition RElief O.R.C.XN232953.21 raising the following issues:

I.INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL LINDSEY K.DQNEHUE2,INCORRECT CHARGE OF DECREE OF FEKQNY:PERJURY O.R.C.2921.113.UNITED STATES CONSTITUTIONAL VIOLATION AMENDMENT FOUR4.UNITED STATES CONSTITUTIONAL RIGHT VIOLATION AMENDMENT SIX,

FIVE,FOURTEEN.

5.NO EVIDENCE TO SUPPORT THE ELEMNT OF EITHER CRIME WERE PROVE N

THa two cases were assigned Case NOs.12-CA_03,12-CA_08 The FIFTH

District Appeals court DENIED ON RES JUDICATA.

4.


ON March 14,2012 the APpelaln_t filed a SEOOND POST-CONVICTIONRELIEF O.TR.C.2953.23,stating the foliwing FACTS of error:

THe home of the Appelalnt was ILLEGALLY SEARCHED and AMENDMENTEIGHT VIOLATEDWHEN THE GUERNSEY COUNTY DEPUTIES HELD THE APPELALNTMINOR SON AT GUNPOINT(SHOTGUN).WHILE HE WAS INSIDE HIS HMME.

TIIE APPELALNT"S WIFE WHO TESTIFED THAT SHE WAS MOT KIDNAPPEDWHEN ASKED AT THE TRIAL UNDER OATH,WHO TESTIFED FOR THE APPELLANTWAS THREATENED AND LIED TO BY THE POLICE. SEE TR.324 and 325

DETECTIVE SAM WILLIAMS TAMPERED WITH THE EVIDENCE AS THEMIRADA FORM AND COMMZ'TTED PRRJURY.AND that there was INSUFFICEINTEVIDENCE TO SUPPORT THE KIDNAPPING CHARGE AND the convcition wasagainst the mainfest weight of the evidence.TRia1 counsel wasineffective in violation of u.s.six.

Bail was excessive at $105,000.00 on one charge of having weaponswhile under disability. THE RTIAL COURT DENIED the PETITION EVENTHOUGH THE LAW O.R.C.2953.23 is for untimely post_Convciotn reliefand COnstitutional violations.

THe Appellant Appealled EVEN THOPUGH THE TRial Court didACKNOWLEDGE TWO OF THE MANY MISSTAMIlVI'S THAT WAS PROVIDED BY THEGUERNSEY COUNTY PROSECUTOR DANIEL G.PADDEN IN THE BRIEF FOR THESTATE OF OHIO APPELLEE,PLAINTIFF FILED ON MAY 11,2011.

SEe enclosed copy of the FINDINGS OF FATTS Page Two NO 7.enclosed copy.

THe Appelalnt Appealled and raised the follwoing issues:1.THE COURT FAILS TO ACKNOWLEDGE THE LEGAL DOCUMENTWS PROVICED

WITH THE OPOST CONVCITION RELIEF.

2.THE COURT^FAILS TO ACKNOWLEDGE FACTAUL F'ACTS TO SUPPORT THECOURT"S STATEMENTS

3.THE TRIAL COURT FAILS TO ACKNOWLEDGE THE SEVERAL FALSE,INCORRECTOUTRIGHT LIES,STATEEMNTS IN THBNE STATE OF OHIOI"S APPELLEE BRIEF

4.THE TRIAL COURT COMMITTED ERREEDF IN THE MOTION TO ACQYITTAL5.THE TRIAL COUNSEL WAS INEFFECTIVE BY-NOT ASKING FOR MOTION

FOR ACQIJITTAL PROPERLY AND VIOLATIONS OF UNITED STATESCONSTITUITONAL RIGHT AMENDEMNT SIX.

The Fifth District COurt of Appeals IMPROPERLY API'LIED RES1TfDICATA

THe Appelalnt filed on SEptemebr 21,2012 a PETITION TO VACATEOR SET SIDE HIS JUDGEMENT OF CONVCITION AND SETENCE..

TRial COurt DENIED three days later on SEptemebr 24 2012hAthe. ppellartappealled raising the following assignments of error:

!.THE SENTENCE IS A VOID SENTENCE AND UNCONSTITUTIONAL SENTENCEPURSUANT TO OHIO REVISED CODE 2905.01 KIDNAPPING(A)(1)(2)NOPERSON,BY FORCE,THREAT,OR DECPTION,OR IN THE CASE OF A VICTIM OFUNDER THE AGE OF THIRTEEN OR MENTALLY INCOMPETENT,BY ANY MEANSSHALL REMOVE ANOTHER FROM THE PLACE WHERE THE OTHER PERSON ISFOUND OR RESTRAIN THE LIBERTTY OF THE OTHER PERSON FOR ANY OF THEFOLLOWING PURPOSES:(1)TO HOLD FOR RANSOM,OR AS A SHEILD OR HOSTAGE(2)TO FACILITATE THE COMMISSION OF ANY FELONY OR FLIGHTAFTER ORTHEREAFTEReSEE AFFIDAVIT FROM TINA HARPER,NIETYHER ELEMNT OF THECRIME OF KIDNAPPING WERE PROVEN AT TRIAL.

2.THE SENTENCE IS A VOID SENTENCE AND UNCONSTITUTIONAL SENTENCEAS PURSUANT TO OHIO REVISED CODE 2941.145;SPECIFICATION CONCERNINGUSE OF A FIREARM TO FACILIATTE OFFENSE;THERE IS NO PROOF OR

EVIDENCE SUPPORTING THE USE OR FACILITATION OF A FIREARM TO COMMITTHE OFFENSE OF KIDNAPPING.

5.


3.THE SENTENCE IS A VOID SENTENCE AND UNCONSTITUTIONALSENTENCE AS PURSUANT TO OHIO REVISED CODE 2923.13 HAVING WEAPONS

WHILE UNDERD ISABILITY;BALDWINS OHIO PRACTICE,KATZ & GANNILLEI

OHIO CRIMINAL LAWS AND RULES;ELEMENT SOF THE OFFENSE;PENALITY 5th

DEGREE FELONY THERE WERE NO ELEMENTS TO PROVE THAT THE WEAPONSWHILE UNDER DISABILITY WAS A THIRD DEGREE FELC3NY.

The Fifth District Court of Appeals DENIED the Petition for a

Vacate or set aside the convcition or sentence on RES JUDICATA

which does not apply to a VOID SENTENCE.Which the Appe.lalnt citedUNIted States Supreme COurt Case Laws and State of OHio Case Lawswhich the Fifth District Court of Appeals failed to acknowledge.

See State v.Owens CA.Vo.15607.THe Appellate Court for theNinth District(1992)OHio App.Lexis 5486,October 28,1992;

THe doctrine of res judicata does not bar relief merely in asecond or sucessive petition for post-conviction relief merelyBECAUSE SIMILAR RELIEE' WAS DEiNIE13 IN A EORMER PETITION forPOST CONVICTION relief.OHio REvised COde 2953.23

See Ballew v.UNited States Dlstrict COurt Lexis 21823 HN 4THere are three notable exceptions tot he absolute application ofres judicata.See Ballew v.UNited States 2000 Lexis 21823

First Claims whose resolution would requir evidence outsidethe record cannot be barred by res judicata Because they cannotbe pursed on direct appeal,and therefore would not be barred bythe doctrine of res judicata If raised in a State POst-Convictionaction.SEcond Claims alleding errors that would..render thejudgement of the trial court void i.e.

SEe State v.Fischer 128,OHio ST.92,2010,OtIio Lexis 6238,942,N.E.2d,332,2010,0HIO Lexis 3184,State v.BEnzak 114,OHio ST.3d,94,2007 OHio 3250,858N.E.3d,961,0:Hio REvised COde 2953.08(G)(2)(b)permit an appellate court upon finding that a sentence i.s clearlyand convicing contrary to law,to remand for re-sentencoing.expressly authories a reviewing court to modify or VACATE anysentence thta a.s contrary to law.See State v.Beasley 1984)14,OHi.oST.3d,74,75,14,QHIo 511,471,N.E.2d,774.

VOID SENTENCES ARE NOT PRECLUDED FOR APPFT,i.ATF. R'PvTPw Pv

6.

ARGUEMENT IN SUPPORT OFPROPOSITION OFLAW

The Fifth District Court of Appeals NUNC PRO TUNC filed onOctober 2,2013 in Case N0.2010-CA-44 did not correct the errorsin the Opinion filed over two years before in Case N0.10-CA-44filed on SEptember 9,2011 and the errors are not scrivener°serrors:

Blacks Law Dictionary:scrivewner`s error.See clerical errorunder ERROR(2)

ERROR(2)clerial error.An error resu.lting from a rninor mistakeor inadvertence,esp.in wrY.ting or copying somethingon the recordand not frorii judicial reasoning ordetermination.Amonug theboundless examples of clerial errors are omitting an appendix froMa document;typing an inccrrect nutiaber;mistranscribing a wo-rdandTailing to log a ca l;Acourt can correct a cl.erial error at anytime.even after judgement has een entered.See Fed.R.Civ.P,60 a)Fed.R.Crim.P.36-Also termed scrivener's error vitium clertici SeeVITZUM SCRIPTORIS (Cases: Federal Civil Procedure 2653 JUdgeemnt306 C.J.S. JUdgeemnts 280-28

INADVERTENCE An accidentel oversight;a result of carelessness

The Errors of the Fifth District Court of Appeals are notscriverner's errors:the OPinion was copied off of the GuernseyCounty Prosecutor`s Daniel G.Padden's Appellee Brief for theState of OHio filed on MAY 11,2011 See copy enclosed of theSEcond POst-Conviction RElief O.R.C.2953.23 Page two number 7

There never has been a Direct Appeal or a review of the recordbecause the elements for OHio REvised Code 2905.01 KIDNAPPINGCase N0.10-CA-44 Fifth Distrcit Court of Appeals Opinion Page 9N0.(34)whzch reads:Appellant was found guility of KIdnapping R.C.2905.01. defines the offense of kidnapping as(A)NO person,by forcethreat,or decption,or,in the case of a victim under the age ofthirteen or mentally incompetent,by any means,shall remove anotherfrom the place where the other person is found or restrain theliberty of the other person,for any of the following purposes:(1)TO hold for ransom,or as a sheild or hostage;(2)TO faci.liate the commission of any felony or flight thereafterNEITHER .ELEMNENT OF O.R.C.2905.01 (A)(1)(2) KIDNAPPIIVTG was provenat the trial,or explained tot he jury and the KIdnapping victimtestified when asked if she was kidnapped her answer was NO.See page 325 of the trial transcripts enclosed copy.Q.DD YOU THINK THAT HENRY KIDNAPPED YOU???TINA HARPER A.NO,I feel it was more like a domestice between aman and wifeThen when the Fifth Distrcit Court of Appeals field the NUNC

PRO TUNC they made another mistake and left the Firearm Specifica tionoff from the KIdnnapping charge See No.21

THe JUdgement Entry NUNC PRO TUNC states:WE note that JUdgeEdwards has retired.However,the majority retains power to correctthe errors in our previous decision pursuant to SEction 3(B)(3)ARticle IV of the OHio COnstitution:A majority of the judges hearingthe cause shall be necessary to render a judgement.The NUNC PROTUNC is signed by Hon.Shelia G.Farmer and HOn.W.SCott Gwin buthe is retired and one signature is not the majority.

7.

ARGUEMENT IN SUPPORT OF PROPOSITION OF LAW

The NUNC PRO TUNC is INVALID as the DIRECT APPEAL in INVALIDThe NUNC PRO TUNC does not correct the errors through out theOPInion and are not typing errors.

See Mason v.Hanks 97,F.3d,N34 887,(7th CIrcuit Court 1996)that the appeal was not fundamentally fair and that the resultingaffirmance of his convcition is nor reliable.

ON Appeal,the Court held that a rational trier of fact couldnot have found beyond a reasonable doubt the essential elementsof the crime of aggravated kidnapping as the movement of thervictim was slight.THe Court held that the District Court erred innot grnating the writ of habeas corpus DUE TO THE FAILURE OF PROOFof aggravated kidnappings

HN 5 If ataking or confining is alleged to havbeen done toFACILIATE THE COMMISSION OF ANOTHER CRIME (a)must not be slight,inconsequent and merely inherent,incidenta.l to the other crime(b)must be of a kind inherent in the nature of the other crimemust have some signifiance independant of the other crime inthat it make34s the other crime substantially easier of commissionor sunstantial lessens the risk ofdectection.REVERSED KIDNAPPINGJermone Messer Appellant v.Raymond Roberts 94-3362 UNited StatesTEnth CIrcuit 74,F.3d,1009,1996 UNited States App.Lexis 963(1996)

UNder CRiminal Rule 29 a TRial Court "shall order the entry ofa judgement of acquittal of one or more offenses charged in theindictment,information,or complaint,if the evidence is insufficientto sustain a convcition of such offense or offenses.

First,the COmmentary to the OHio JUry INstrucxtions"MUst coverthe elements of the felony offense together with thew meaning ofthe words and phareses"SUCH AS FACILITATING"which is defined as"Helping,promoting,assisting,and aiding 4-505 OHio JUry INstruction505.01(A)

Olaughlin v.O'Brien 568,F.3d,287(lst Circuit) 2009 CErttioraridenied 130 S.CT.1142(2010) the many strands of circumstantialevidence the prosecution has presented were far from sufficientto establish O'Laughlin's guilt under Jackson v.Virginia.

Newman v.Metrish 543,F.3d,793,(6th CIrcuit) 2008 Certioraridenied 130 S.CT.1134,(2010) circumstantial evidence presented byprosecution at trial did not sastify elements of sufficiencySee Enclosed TRial Transcripts as to the elemnt of kidnapping TR.

TR 493.

Siddigi v.UNited States 98 F.3d,1427(2nd Circuit 1999)SEction 2255 movents"canvcition had no legitimate factual or legalbasis and...but for the conduct of the prosecution in adoptingshifting and at tiomes misleading positions N0: convcition wouldhave been obtained or sucessfully defended on appeal.

(a)Claims arising under Sandstrom v.Montanta 442,UNited States510,(1979) that jury instructions violated due process by relieveingState of proving every eleemnt beyond a reasonable doubt.

Due Process Claim that evidence was UNCONSTITUTIONALLYINSUFFICENT to sustain jury's verdict of guilty.

Fiore v.White 531 UNited States 225,(2001)(per curiam)grantingfederal habeas corpus releif because prosecutionfailed to presentSUFFICENT EVIDENCE TO PROVE ELEMENT OF CRIME and therefore2etitioner°s conviction is not consient with the demands of theFederal DUE PROCESS CLAUSE.

The Due Process Clause of the Fourteenth Amendment protecteda criminal defendant agaist a convction except upon proof beyonda reasonable doubt of every FACT necessary to constitute the crimor charge.A State prisoner who alleged the evidence could riot be o6pi^AlyTcharacterized as sufficient to have had a rational trier

C to find guilkt beyond a reasonable doubt.

8.

ARGUEMENT IN SUPPORT OF PROPOSITION OF LAW

The INdictmnet failed to indentify the felon,y underl ing thekidnapping offense as alternatives charged under 0 R.C.2905.01(A)(2)therefore failed to demstrate the basis of the GRand JUry findingState v.CHilds(2000) 58 Ohio St.3d,194,2000,OHio 298,724,N.E.2d,781,

State v.ADams 62,OHio ST,2d,151,404,N.E.2d,144,1980 Ohio Lexis710 AS a ganeral rule,a defendant is entitled to have the juryinstructed on all elements that must be proved to establish thecrime with which he is charged,THE STATE HAS THE BURDEN OFESTAI3LISHING ALL MATERIAL ELEMENTS OF A CRIME BY PROOF BEYOND AI:EASONABLE DOUBT.

Then if the FIFTH District Court of Appeals OPinion filed inCase V0.10-CA_44 Direct Appeal and in the NUNC PRO TUNC filedOctober 2,2013 over two years later that states:

NO.16 the Fifth District COurt of Appeals cites: State v.Hooks92 OHio ST,3d,83,2001-)hio-15(1,748,N.E.2d,528(2001)the SupremeCOurt noted "a reviewing court cannot add matter to the recordbefore thta was not apart of the trial court's proceeding andthen decide thre appeal on the basis of the new matter.SeeIshmail v.State 54,OHio ST.2d,402,377,N.E.2d,500(1978) It is alsoa longstanding rule"thatthe record cannot be enlarged b y factualASSERTIONS IN THE BRief" Dissoultion of Doty v.Doty 4th DistrictNO.411,1980 WL350992(Feb.28,1980)cYting SCioto Bank v.COlumbutUNion STock Yards 120 OHio App.55,59,201 N.E.2d,227,(1963)

N E W M A'T E 12 I A L A N D F A C T U A L ASS=ONS CONTAINED IN ANy BREIF IN THIS C® U R T M A YNOT BE CONSIDERED " SEe NOrth V.Beighter 112,OHio ST.3d,122,2006-OHio ST.6515,858,N.E.2d,386,7,quoting Dzina v.Celebreeze,108 oHIOST,3d,385,2006-Ohio-1195,843,N.E.2d,1202.

Circumstantial Evidence relied upon to prove an essential element of acrime must be irreconciable with any reasonable theory of anaccused's innocence in order to support a finding of guiltState v.Kulig(1974)37 OHio ST.2d,157,66,oHIo OP.2d,351,309,N.E.2d,897 KIDNAPPING O.R.C.2905.01(A)(2) REVERSED.

State v.Nei_l.and(holding that there was NO EVIDENCE that the,victim was restrained in any way,therfore there was insufficientevidence to suppiort a kidnapping convcition App.2005-CA 15

9.

PROPOSITION OF LAW

1.THE FIFTH DISTRICT COURT OF APPEALS NUNC PRO TUNC FILED ON

OCTOBER 2,2013 IN CASE N0.2010-CA-44 DIDNOT CORRECT THE ERRORS

IN THE OPINION FILED OVER TWO YEARS BEFORE IN CASE N0.10-CA-44

FILED ON SEPTEMBER 9,2011 AND THE ERROR'S ARE NOT SCRIVENER"S

ERRORS.

THE NUNC PRO TUNC IS INVALID AS THE DIRECT APPEAL IS INVALID

THE NUNC PRO TUNC DOES NOT CORRECT THE ERRORS THROUGHOUT TIIE

OPINION AND ARE NOT TYPING ERRORS.

10.

TO THE SUPREiIE COURT OF OHIO

STATE OF OHIO JUDGES:HON.SCOTT W.GWIN P.J.

APPELLEE-DEFENDANT HON.SHELIA G.FARMER J.

vs. CASE NO. 10-CA 44

HENRY N. HARPER A638-859 ON APPEAL FROM THEGUERNSEY COUNTY COURT

APPELLANT-PLAINTIFF OF APPEALS FIFTH

APPELLATE DISTRICT

JUDGEMENT ENTRY NUNC PRO TUNC filed on OCTOBER 2,2013

MOTION REQUESTING THE FILING OF REDUCED

NUMBER OF COPIES

NOw comes the Appellant-PLaintiff Henry N.Harper requesting

this Court to grant his MOtion requesting a rediuced number of

copies in the above entitled action in Case NO.10-CA-44.

Appellant states he is incarcerated at Belmont Cotrectional

INstitution and has filed the proper Affidavit of INdigency in

this matter and hereby requests allowance to file a reduced

number of copies.

THANK YOU

HENRY N.HARPER

SIGNED PRO-SE ^--j

Belmont Correctional INstitution P.O.BOx 54068518 Bannock Road,Saint CLairsville,OHio 43950

SWorn t,affirmed,and subscribed in my presence this

day of'^^`^ 2013.

tai^y Public

MY commission Expires

_^Q,m^, S

a ^ Fr MICHELLE LYNN THEILtr $ Notary PubBic, State ot Ohio

^R, E a F^^° My Commission F.zpires Apr: 28, 2097 1 l.

CONCLUSION

HEN.RY N.HARPER A638-859

BELMONT CORRECTIONAL INSTITUTION

P,0.T30X 540 68518 BANNOCK ROAD

SAINT CLAIRSVILLE,OHIO 43950

I Henry N.Harper hereby request that this MOst Honorable

Supreme Court of OHio remand this Case No.10-CA-44 back to the

Fifth District Court of Appeals for a complete review of the

FACTS and EVIDENCE as there has never been a Direct Appeal or a

Review of the record,and that the NUNC PRO TUNC is based on

scrivener's errors,which is completely incorrect,when the TRial

Court acknowledges in the SEcond POst Conviction RElioef O.R.C.

2953.23 that the State of OHio provided the FALSE,INCORRECT

Information in their brief filed on May 11,2011,And the Fifth.

District COurt mainly copied the Prosecutor's Brief because the

elements for kidnapping are not proven in the trial court record,

O.R.C.(A)(1)(2) and the Prosecutor's BRief for the State of OHio

and the Fifth District Court of appeals Opinion both contain the

statement Page NO.9 NO.35 that she faciliated the commission of

the felony and the flight thereafter.

Or otherwise review the Case in the Supreme Court of OHio,

to stop this injustice of the Fifth District Court of Appeals,

and quit wasting the taxpayers money on time that could be used

for proper justice.

12.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the forLgoing Memorandum in Support of Jurisdiction was

forwarded by regular U.S. Mail to DANIEL G.PADDEN, Prosecuting Attorney,

GUERNSEY County, P.QBOX 640 139 WEST 8th ; T,Cambrzdgel_, Ohio

4 3 725, > this^^ day of NaVEMF^ ---- , 20 ^

^^ - -~S[GNxT4.RE .

HENRY N.HARPER A638-859\fu:F'.a`.D ^'MR"cR

DE1:~ENDANT-APPELLANT, PRO SE

13.

IN T1-lE. SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,Case No.

On Appeal from the GUERNSEYvs. : County Court of Appeals

-FTFTH Appellate DistrictHENRY N.HARPER a638-859

C.A. Case No. 10-CA44Defendant-Appellant. NUNC PRO TUNC f1t6d on

October. 2,2013

AP.PENDIX TO

MEl►idORANT1iJIVI IN SUPPORT OF JURISDICTIONOF Al'I'ELLANT HENRY N HARPER

1.A-1 Opinion of the Fifth District COurt of Appeals filed onOCtober 2,2013 in Case N0.10-CA-44 NUNC PRO T[JNC........... 15.PAGES 15-38 23 pages ... ....... ...................1a:38.

2.Appendix B Affidavit from TIna Harper concerning the KIDNAPPINGO.R.C.2905.01 that states I WAS NOT KIDNAPPED SEe TR,325.... .39.

3.Appendix C SECOND POST-CONVICTION RELIEF PAGE 2 NO.7 O.R.C2953.23........ .. . . ................ ... ........ .. .. ... ....... 40.

4.Appendi.xD BALDWINS OHIO PRACTICE LAWS AND RULES 2010ATZ & GANNEILEI ................................>...........41.

5GUERNSE'Y' COUNTY COURT TRANSCRIPTS PROSECUTOR DANIEL G.PADDEN'sELEMEiVTS OF THE CRIME OF KIDNAPPING O.R.C.2905,01(A)(1)(2).<42.GUERNSEY COUNTY COURT RTANSCRIPTS THE TESTIMONY OF TINA HARPERCONCENRING THE KIDNAPPING TR.325 ............................43.

715kUERNSEY COUNTY COURT TRANSCRIPTS PAGE 318-319.............. 44.8 GUERNSEY COUNTY COUIRT TRANSCRIPT PAGE 324 .................. 4.:3.9 GUERNSEY COUNTY COURT TRANSCRIPTS TESTIMQNY OF DETECTIVE SAMWIL^.IAMS CONCERNING THE COMPUTERIZED CRIMINAL HISTORY......... 45.1GUERNSEY COIJNTY COURT TRANSCRIPTS OF MATT SCURLOCK"s

TESTIMONY CONCERNING THE ILLEGAL SEARCH..TR.1.58............ 46.11UERNSEY COUNTY COURT TRANSCRIPT OF' DUSTIN BEST TESTIMONY

CONCENRING THE ILLEGALS EARCH TR.367 ............... .......%7.12^"GUERI,JSEY COUNTY DETECTIVE SAM WILLIAMS INVESTIGATOR ^ NOTES ,. 4F8.1A1GUERNSEY COUNTY COURT TRANSCRIPT PAGE 281 .................. 49.

'A(• 14.

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT FILID

CCUXT ^ APPEALSSTATE OF OHIO ;

CCT fl 2 2013Plaintiff-Appellee

-vs-

HENRY HARPER

Defendant-Appellant

GTJE Y cCvi4'I°'k','reresa A. pl^enkovic, CI&k rst'CeDrt

JUDGMENT ENTRY

NC1NC PRO TUNC

CASE NO. 2010-CA-44

This Court sua sponte corrects the Memorandum-Opinion filed September 9,

2011, 2011-Ohio-4568, 2011 WL 4011642 to correct scrivener's errors in the following

respects: 1). ¶1 should read: "Defendant-appellant Henry Harper appeals the judgment

of the Guernsey County Court of Common Pleas convicting him of Kidnapping with a

firearm specification, ^felony of the second degree, Having Weapons While Under a

Diadbility a felony of the third degree, and Discharge of a Firearm on or Near Prohibited

Premises a misdemeanor of the first degree. Plaintiff-appellee is the State of Ohio."; 2).

At ¶18 delete: "with a firearm specification"; and 3). ¶21 should read: "GUILTY of

Kidnapping, a felony of the second degree." The error in the degrees and convictions

does not change the substance of our decision.

We note that Judge Edwards has retired. However, the majority retains power to

orrect the errors in our previous decision pursuant to Section 3(B)(3), Article I1! of the

Ohio Constitution.

15.

Therefore, this nunc pro tunc judgment entry along with a nunc pro tunc opinion

and judgment entry shall be filed in this matter to correct the errors.

IT IS SO ORDERED.

, .

HON. W. SCOTT GWIN

HON. SHL1LA G. FARMER

16.

STATE OF OHIO

HENRY HARPER

-vs-

COURT OF APPEALSGUERNSEY COUNTY, OHIOFIFTH APPELLATE DISTRICT

JUDGES:Hon. W. Scott Gwin, P.J.Hon. Sheila G. Farmer, J.

Plaintiff-Appellee : Hon. Julie A. Edwards, J.

Defendant-Appeliant

Case No. 2010-CA-44

OPINION

NUNC PRO TUNC

CHARACTER OF PROCEEDING:

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

DANIEL G. PADDEN139 West Eighth StreetCambridge, OH 43725

17

Criminal appeal from the Guernsey CountyCourt of Common Pleas, Case No.10-CR-70

Affirmed

For Defendant-Appellant

RONALD COUCH121 West Eighth StreetCambridge, OH 43725

Guernsey County, Case No. 2010-CA-44 2

Gwin, P. J.

{11} Defendant-appellant Henry Harper appeals the judgment of the Guernsey

County Court of Common Pleas convicting him of Kidnapping with a firearm

specification, a felony of the second degree, Having Weapons While Under a Disability

a felony of the third degree, and Discharge of a Firearm on or Near Prohibited Premises

a misdemeanor of the first degree. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{12} On May 7, 2010 appellant was employed by Little Bear Construction which

is owned by David Ratliff, it was Friday and a pay day. There was a disagreement at

work and appellant left the work sight and went to the home of Mr. Ratliff. Appellant was

anxious, excited, and argumentative.

{13} After leaving Mr. Ratliff's residence, appellant arrived at the residence of a

friend, Charles Dalton, at approximately 5:30 p.m. At the Dalton residence, appellant

was observed to be agitated and in possession of a black handgun.

{14} At approximately 7:30 p.m. appellant's wife, Tina Harper, arrived home

from running errands to find her husband drinking and upset. Appellant said to his wife,

"Bitch, you're going to take me down there," meaning to Mr. Ratliff's residence. (T. at

287). Appellant was knocking things off the kitchen counter, breaking things, and would

not calm down. Appellant knocked a frying pan off the stove and ordered Mrs. Harper

to drive him to Mr. Ratliff's home. Appellant stated that he was going to "teach him a

lesson." (T. at 288). Mrs. Harper drove appellant and they stopped at different places

including a service station and a friend's home.

18.

Guernsey County, Case No, 2010-CA-44 3

{¶5} Mrs. Harper was scared and afraid of appellant. (T. at 287-288.) Appellant

threatened his wife during the incident, showing her the butt of his gun while she was

driving and waving the gun around next to her. Appellant gave his wife directions to the

Ratliff home, telling her that if she pulled over or made a scene he would beat her head

in with the gun. Appellant told his wife that he was going to "shoot up" Mr. Ratliff's truck,

and when they arrived at the residence, appellant put his arm out the window and Mrs..__.._,

Harper heard several gunshots.

{16} After this incident, appellant came into contact with a friend Robert Webb,

to whom he relayed the information that he had "just shot at some people." (T. at 271).

{¶7} At 10:27 p.m. on May 7, 2010, the Guernsey County Sheriff's Office

received a call regarding shots being fired at the residence of David Ratliff, Upon arrival

at the scene, the deputies discovered several spent Winchester 9 mm casings along the

roadway in front of the residence. Mr. Ratliff informed the deputies that earlier that day

he had a disagreement with appellant regarding some occurrences on a job site,

{18} At approximately 11:30 p.m. on the same night, the deputies were en

route to the Sheriff's Office when they received another call regarding a man with a

pistol. Upon learning that the subject of the call was appellant, the deputies went to

appellant's home. Appellant was not at the residence, but his wife arrived shortly after

the deputies, driving a silver S-10 pickup truck. At the time of her arrival at the

residence, Mrs. Harper told the deputies that she did not know the current whereabouts

of appellant.

{19} Mrs. Harper permitted the deputies to search the residence. During that

search, the deputies discovered a partial box of Winchester 9 mm bullets and empty

19.


gun boxes. Also on the property, the deputies located a minivan behind a buifding. The

hood of the van was warm as if the van had been recently driven. Mrs. Harper

eventually admitted she had driven appellant to the residence of a Mr. Dalton.

{110} Upon arriving at Mr. Dalton's residence, the deputies patted appellant

down for weapons. At the Sheriffs Office, appellant submitted to a gunshot residue

swab. Appellant was asleep in the holding cell and his right arm was resting underneath

his body. When the deputy asked appellant for his left hand in order to conduct the

gunshot residue test appellant raise his left arm straight up in the air allowing the deputy

to conduct the test. When the deputy asked for his right hand, appellant did not answer

or otherwise comply with the request. Appellant tested positive for gunshot residue.

(¶11) Testimony was introduced at trial that appellant owned a gun and that he

had it with him that night. In addition appellant acknowledged that he had been

convicted of a felony about twenty-five (25) years before the night in question. Further it

was acknowledged that there was no record that was attached or a part of the original

case to indicate that appellant had expunged or sealed that record. However, appellant

testified that he had purchased guns legally since his previous felony and had gone

through records checks for those purchases. He had further passed records checks for

federal employment and other jobs that he had held. Finally, appellant testified that he

had asked his attc ►rney to file and seal his record and that he thought that had been

done some years before the incidents which occurred May 7, 2010 and which resulted

in these charges being filed.

{112} On May 25, 2010, appellant was indicted by the Guernsey County Grand

Jury for the following:

20.


{¶13} Having Weapons While Under Disability in violation of R.C. 2923.13, with

a Firearm Specification, a felony of the third degree;

{114} Tampering With Evidence in violation of R.C. 2921.12(A)(1), a felony of

the third degree;

{115} Discharge of Firearm on or Near Prohibited Premises in violation of R.C.

2923.162, a misdemeanor of the first degree; and

{116} Kidnapping in violation of R.C. 2905.01(A)(1) and (2), with a Firearm

Specification, a felony of the first degree.

{117} On October 15, 2010, the jury returned the following verdicts:

{116} GUILTY of Having Weapons While Under Disability in violation of R.C.

2923.13;

{119} NOT GUILTY of Tampering With Evidence in violation of R.C.

2921.12(A)(1), a felony of the third degree;

{120} GUILTY of Discharge of Firearm on or Near Prohibited Premises in

violation of R.C. 2923.162, a misdemeanor of the first degree; and

{121} GUILTY of Kidnapping, a felonyof the second degree.

{122} On November 3, 2010, appellant was sentenced to three years

imprisonment for Count 1, six months imprisonment for Count 3, two years

imprisonment for Count 4, and three years imprisonment for the Firearm Specification to

Count 4. The three year mandatory sentence for the Firearm Specification was ordered

to be served first with all remaining prison terms to be served consecutively, for a total

of eight years imprisonment.

21.


{¶23} Appellant has timely appealed raising three assignments of error:'

{124} "1. THE DECISION WAS AGAINST THE SUFFICIENCY AND MANIFEST

WEIGHT OF THE EVIDENCE.

{¶25} "I1. THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY

CHARGING THE JURY.

{126} "lIl. APPELLANT WAS DENIED HIS RIGHT BECAUSE OF INEFFECTIVE

ASSISTANCE OF COUNSEL."

I.

{127} In his first assignment of error, appellant maintains that his convictions are

against the weight of the evidence and are based upon insufficient evidence. We

disagree.

{128} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, which requires a court of appeals to determine whether "after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt." ld.; see

also McDaniel v. Brown (2010), --- U.S. ----, 130 S.Ct. 665, 673, 175 L.Ed.2d 582

(reaffirming this standard). See, State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010-Ohio-2720 at ^68.

' Appellant, pro se, attempted to file documents with the Clerk of Courts in this case. He did notrequest and was not granted leave to file a pro se brief. This brief was filed after the State had filed itsbrief. Appellant's pro se brief does not show a proper Proof of Service as mandated by App. R. 13.Accordingly, the State had no opportunity to reply to appellant's pro se brief. Additionally, Ohio lawprohibits a defendant and his appointed counsel from acting as "co-counsel" See, State v. Martin, 103Ohio St.3d 385, 816 N,E.2d 227, 2004-Ohio-5471. Accordingly, we will not address appellant's pro searguments in the disposition of this appeal.

22.


{129} Jackson thus establishes a two-step inquiry for considering a challenge to

a conviction based on sufficiency of the evidence. First, a reviewing court must consider

the evidence presented at trial in the light most favorable to the prosecution. Jackson,

443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. This means that a court of appeals

may not usurp the role of the finder of fact by considering how it would have resolved

the conflicts, made the inferences, or considered the evidence at trial. See Id., at 318-

319, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Rather, when "faced with a record of

historical facts that supports conflicting inferences" a reviewing court "must presume

even if it does not affirmatively appear in the record that the trier of fact resolved any

such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; see also McDaniel, --- U.S. ---, 130 S.Ct.

at 673-674, 175 L.Ed.2d 582; United States v. Nevils (C.A.9, 2010), 548 F.3d 802.

{130} Second, after viewing the evidence in the light most favorable to the

prosecution, the reviewing court must determine whether this evidence, so viewed, is

adequate to allow "any rational trier of fact [to find] the essential elements of the crime

beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560;

State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541; State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492. See, State v. Clay, supra at ¶ 70.

{131} This second step protects against rare occasions in which "a properly

instructed jury may * * * convict even when it can be said that no rational trier of fact

could find guilt beyond a reasonable doubt." Jackson, 443 U.S, at 317, 99 S.Ct. 2781,

61 L.Ed.2d 560. More than a "mere modicum" of evidence is required to support a

verdict. Id. at 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (rejecting the rule that a conviction be

23.

° Guernsey County, Case No. 2010-CA-44 8

affirmed if "some evidence" in the record supports the jury's finding of guilt). At this

second step, however, a reviewing court may not "`ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt,' " Id. at 318-319, 99

S.Ct. 2781, 61 L.Ed.2d 560, quoting Woodby v. INS (1966), 385 U.S. 276, 282, 87 S.Ct.

483, 17 L.Ed.2d 362, only whether "any' rational trier of fact could have made that

finding, id. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. Nevils.

{132} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St. 3d 387, 678

N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds

as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On

review for manifest weight, a reviewing court is "to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the 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 judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in

the exceptional case in which the evidence weighs heavily against the judgment." State

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Because the trier of fact is in a better position to observe the

witnesses' demeanor and weigh their credibility, the weight of the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. Deflass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.

24.

° Guernsey County, Case No. 2010-CA-44 9

{¶33} In Thompkins, the Ohio Supreme Court held "[t]o reverse a judgment of a

trial court on the basis that the judgment is not sustained by sufficient evidence, only a

concurring majority of a panel of a court of appeals reviewing the judgment is

necessary." ld, at paragraph three of the syllabus. However, to "reverse a judgment of

a trial court on the weight of the evidence, when the judgment results from a trial by jury,

a unanimous concurrence of all three judges on the court of appeals panel reviewing

the case is required." Id. at paragraph four of the syllabus; State v. Miller (2002), 96

Ohio St.3d 384, 2002-Ohio-4931 at ¶38, 775 N.E.2d 498.

{134} Appellant was found guilty of Kidnapping. R.C. 2905.01 defines the

offense of kidnapping as, "(A) No person, by force, threat, or deception, or, in the case

of a victim under the age of thirteen or mentally incompetent, by any means, shall

remove another from the place where the other person is found or restrain the liberty of

the other person, for any of the following purposes: (1) To hold for ransom, or as a

shield or hostage; (2) To facilitate the commission of any felony or flight thereafter."

{135} In the case at bar, appellant's wife testified that she was scared and afraid

of appellant and that he threatened physical harm to her if she did not comply with his

directions. It was further clear that by forcing Mrs. Harper to drive him to Mr. Ratliff's

home, she facilitated the commission of the felony and the flight thereafter.

{736} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had committed the crime of kidnapping. We hold, therefore, that the State met

its burden of production regarding each element of the crime of kidnapping and,

accordingly, there was sufficient evidence to support appellant's conviction.

25

I Guernsey County, Case No. 2010-CA-44 10

{137} A fundamental premise of our criminal trial system is that 'the jury is the lie

detector.' United States v. Barnard, 490 F.2d 907, 912 (C.A.9 1973) (emphasis added),

cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). Determining the

weight and credibility of witness testimony, therefore, has long been held to be the 'part

of every case [that] belongs to the jury, who are presumed to be fitted for it by their

natural intelligence and their practical knowledge of men and the ways of men.' Aetna

Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891)" .

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267.

{138} Although appellant cross-examined the witnesses and argued that Mrs.

Harper was left alone during the time she was in the car with appellant and further that

she did not ask for help when she had the opportunity to do so to negate the State's

argument that he kidnapped his wife, the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49

Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The jury was free to accept or

reject any and all of the evidence offered by the parties and assess the witness's

credibility. "While the jury may take note of the inconsistencies and resolve or discount

them accordingly * * * such inconsistencies do not render defendant's conviction against

the manifest weight or sufficiency of the evidence". State v. Craig (Mar. 23, 2000),

Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No.

95APA09-1236 Indeed, the jurors need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-

Ohio-958, at ¶ 21, citing State v. Anti11 (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.;

State v. Burke, Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell

26


(1992), 79 Ohio App.3d 667, 607 N.E.2d 1096. Although the evidence may have been

circumstantial, we note that circumstantial evidence has the same probative value as

direct evidence. State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N,E, 2d 492.

{139} After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that appellant was guilty of the crime of

Kidnapping as charged in the indictment.

{¶40} We conclude the trier of fact, in resolving the conflicts in the evidence, did

not create a manifest injustice to require a new trial. The evidence in the record could

convince a reasonable trier of fact that the elements of Kidnapping had been met by the

state.

{141} Appellant's conviction for Kidnapping is supported by sufficient evidence,

and not against the manifest weight of the evidence.

{¶42} Appellant was also convicted of having weapons while under disability.

R.C. 2923.13, states, in pertinent part: (A) Unless relieved from disability as provided in

section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or

use any firearm or dangerous ordnance, if any of the following apply:

{¶43} ` * *

{144} "(2) The person is under indictment for or has been convicted of any

felony offense of violence or has been adjudicated a delinquent child for the commission

of an offense that, if committed by an adult, would have been a felony offense of

violence."

27


{145} In the case at bar, it is clear that appellant had a firearm and that he used

that firearm to damage Mr. Ratliff's property. In addition, the State admitted a certified

copy of appellant's conviction for aggravated assault during appellant's jury trial. See,

R.C. 2945.75. ( State' Exhibit K; T. at 403-404). Aggravated assault is a "crime of

violence". See, R.C. 2901.01(a).

{146} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

appellant had committed the offense of having weapons while under disability. We hold,

therefore, that the State met its burden of production regarding each element of the

crime of having weapons while under disability and, accordingly, there was sufficient

evidence to support appellant's conviction.

{147} Appellant argued that he had believed his conviction for aggravated

assault had been sealed, and further that he had past several background checks which

should have revealed the existence of his disability under R.C. 2923.13.

{148} In State v. Johnson, 128 Ohio St.3d 107, 942 N.E.2d 347, 2010-Ohio-

6301, the Ohio Supreme Court held, "A conviction for violation of the offense of having

weapons while under disability as defined by R.C. 2923.13(A)(3) does not require proof

of a culpable mental state for the element that the offender is under indictment for or

has been convicted of any offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse." Id. at paragraph one of

the syllabus.

{149} Under the plain language of R.C. 2923.13(A) (2), notice of a disability is

not an expressed element of the offense charged. The statute does not require a

28.


defendant to be aware of or have knowledge of his disability. State v. Smith (1987),

39 Ohio App. 3d 24, 25, 528 N.E.2d 1292; State v. Schilling (September 19, 2000),

Tuscarawas App. No.2000AP040034; State v. Jackson (Oct. 20, 1993), Summit App.

No. CA 16086; State v. Quiles (Feb. 3, 1993), Lorain App. No. 92CA005316. Instead,

R.C. 2923.13 only requires that the defendant knowingly acquire, have, carry, or use a

firearm while under a disability. Smith at 25; Schilling at 11; Jackson at 3; Quiles at 1.

{750} We find the same analysis applies to a violation of R.C.2913. (A)(2). In the

case at bar, appellant admitted that he had been convicted of an offense of violence

and further, the state entered into evidence a certified copy of appellant's conviction.

Additionally, the Guernsey County Clerk of Courts testified that she could find nothing in

appellant's case file to substantiate that the conviction had been expunged or sealed.

{151} We conclude the trier of fact, in resolving the conflicts in the evidence, did

not create a manifest injustice to require a new trial. The evidence in the record could

convince a reasonable trier of fact that the elements of having weapons while under

disability had been met by the state.

{152} Appellant's conviction for having weapons while under disability is

supported by sufficient evidence, and not against the manifest weight of the evidence.

{¶53} Appellant's First Assignment of Error is overruled.

II.

{154} In his Second Assignment of Error, appellant maintains that the trial court

improperly charged the jury regarding the definition of knowingly with respect to the

charge of having weapons while under disability. We disagree.

{155} In the case at bar, the trial court instructed the jury as follows:

29.


{156} "A person acts knowingly regardless of his purpose when he is aware that

his conduct will probably cause a certain result or will probably be of a certain nature. A

person has knowledge of circumstances when he is aware that such circumstances

probably exist." (T. at 510).

{157} Appellant argues that the trial court should have also instructed the jury,

"Knowingly means that a person is aware of the existence of the facts and that his acts

will probably (cause a certain result) (be of a certain nature)." OJI 417.11 CR.

{T58} Crim.R. 30 provides that a party may not assign as error the giving or

failure to give an instruction unless he objects before the jury retires to consider its

verdict. Where a defendant fails to raise a timely objection to the giving or failure to give

an instruction, the defendant has waived all but plain error. State v. Adams (1980), 62

Ohio St. 2d 151, 154. An alleged error "does not constitute a plain error ... unless, but

for the error, the outcome of the trial clearly would have been otherwise." State V. Long

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

there is no indication in the record that appellant raised any objection to the trial court's

decision to charge to the jury and, therefore, has waived all but plain error. In this case,

however, the trial court did not commit any error in issuing this charge to the jury, plain

or otherwise.

{159} As noted in our disposition of appellant's First Assignment of Error, supra.

"R.C. 2923.13 does not require a defendant to be aware of his disability as an element

of the offense. Rather, the statute only requires a defendant knowingly acquire, have,

carry, or use a firearm while a disability exists. We cannot support the notion ignorance

of the law is a defense to a criminal prosecution." State v. Schilling (September 19,

30.


2000), Tuscarawas App. No.2000AP040034. See also, State v. Johnson, 128 Ohio

St.3d 107, 942 N.E.2d 347, 2010-Ohio-6301 at ¶42.

{¶60} Accordingly, we find no plain error affecting appellant's substantial rights

occurred as a result of the trial court's instructions to the jury and the failure to instruct

the jury as suggested by appellant.

{161} Appellant's Second Assignment of Error is overruled.

11l.

{¶62} In his Third Assignment of Error appellant contends that his trial counsel

was ineffective. Specifically, appellant argues counsel was ineffective by failing to

present a copy of his actual B.C.I. criminal record which would show that his previous

felony conviction had been sealed and was not a part of his criminal record. In addition

his trial counsel did not object to information coming before the jury concerning the

appellant's misdemeanor convictions for Domestic Violence. We dsagree.

{163} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838;

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373.

{164} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

31.


Bradley. Knowles v. Mirzayance (2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251.

{165} To show deficient performance, appellant must establish that "counsel's

representation fell below an objective standard of reasonableness." Strickland v.

Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel

made errors so serious that counsel was not functioning as the "counsel" guaranteed

the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104

S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S.

at 688, 104 S.Ct. 2052 at 2065.

{166} "Thus, a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel's challenged conduct on the facts of the particular case,

viewed as of the time of counsel's conduct. A convicted defendant making a claim of

ineffective assistance must identify the acts or omissions of counsel that are alleged not

to have been the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. In making that

determination, the court should keep in mind that counsel's function, as elaborated in

prevailing professional norms, is to make the adversarial testing process work in the

particular case. At the same time, the court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S.

668 at 689,104 S.Ct. at 2064.

32.


{¶67} In light of "the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant," the

performance inquiry necessarily turns on "whether counsel's assistance was reasonable

considering all the circumstances." Strickland v. Washington, 466 U.S. 668 at 689,104

S.Ct. at 2064. At all points, "[j]udicial scrutiny of counsel's performance must be highly

deferential." Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.

{168} Appellant must further demonstrate that he suffered prejudice from his

counsel's performance. See Strickland, 466 U. S., at 691 ("An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment"). To establish prejudice, "[t]he

defendant must show that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome." id. at 694. To prevail on his ineffective-assistance claim, appellant must

show, therefore, that there is a"reasonab[e probability" that the trier of fact would not

have found him guilty.

{169} Although appellant argues that his B.C.I. record would show his previous

conviction was sealed, he did not proffer that record in the trial court. In State v, Hooks

(2001), 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528, the Court noted: "[h]owever,

a reviewing court cannot add matter to the record before it that was not a part of the trial

court's proceedings, and then decide the appeal on the basis of the new matter. See,

State v. Ishmail (1978), 54 Ohio St.2d 402, 8 0.0.3d 405, 377 N.E.2d 500. It is also a

longstanding rule "that the record cannot be enlarged by factual assertions in the brief."

3 J.


Dissolution of Doty v. Doty (Feb. 28, 1980), Pickaway App. No. 411, citing Scioto Bank

v. Columbus Union Stock Yards (1963), 120 Ohio App. 55, 59, 201 N.E.2d 227.

Appellant's new material may not be considered. See, North v. Beightler, 112 Ohio

St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7, quoting Dzina v. Celebrezze, 108

Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16. Thus we cannot review

appellant's contention in this appeal.2 We would also note, however, the Clerk of Courts

testified that she had reviewed the file containing appellant's conviction for aggravated

assault and found no evidence that a motion to seal or expunge had ever been filed or

granted by the court.

{170} Appellant next argues that his trial counsel was ineffective because he did

not object to information coming before the jury concerning appellant's misdemeanor

convictions for Domestic Violence.

{171} In the case at bar, the prosecutor did not link this testimony to one of the

enumerated reasons set forth in Evid. R. 404(B), (i.e., proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident).

Accordingly, the prosecutor has failed to establish that such evidence was properly

admitted. However, the admission of prior bad acts is deemed harmless unless there is

some reasonable probability the evidence contributed to the accused's conviction, City

of Columbus v. Taylor(1988), 39 Ohio St.3d 162, 529 N.E.2d 1382.

{172} "'The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.' " State v. Fears (1999), 86 Ohio St.3d 329, 347, 715

N.E.2d 136, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831.

2 Appeliant may however, be able to assert this claim in a Petition for Post Conviction Reliefunder R.C. 2353.21. We express no epinion nri the timeliness or the merits of such a fiiing.

34

° Guernsey County, Case No. 209 O-CA-44 19

In the case at bar, the evidence was limited and brief. Further as detailed in our

disposition of appellant's First Assignment of Evidence there was more than sufficient

independent evidence of appellant's guilt to render admission of the contested evidence

harmless beyond a reasonable doubt.

{173} None of the instances raised by appellant rise to the level of prejudicial

error necessary to find that he was deprived of a fair trial. Having reviewed the record

that appellant cites in support of his claim that he was denied effective assistance of

counsel, we find appellant was not prejudiced by defense counsel's representation of

him. The result of the trial was not unreliable nor were the proceedings fundamentally

unfair because of the performance of defense counsel.

{174} Appellant has failed to demonstrate that there exists a reasonable

probability that, had trial counsel objected to the mention of his misdemeanor

convictions the result of his case would have been different.

{175} Because we have found no instances of error in this case, we find

appellant has not demonstrated that he was prejudiced by trial counsel's performance.

{176} Appellant's third assignment of error is overruled.

35.


° {¶77} For the forgoing reasons, the judgment of the Court of Common Pleas,

Guernsey County, Ohio is affirmed.

By Gwin, P.J., and

Farmer, J., concur

P

^-.^,^,.,'.

q^^.

N. W. SCOTT GWIN

^ ^---.

HQN, SHECA G. FARMER

WSG:cIw 0925

36.

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO

Plaintiff-Appellee

-vs-

HENRY HARPER

Defendant-Appellant

FI^.,E^8^€^T^T OF A"ZALS

OCT 0 2 2013GttZWMrY Ct;UWn, omo

Tecresa A. Dnkpv;c, (,`ierlc of Caar+t

JUDGMENT ENTRY

CASE NO. 2010-CA-44

For the reasons stated in our accompanying Memorandum-Opinion, the

1^,^ • ^ ^.^..^ ^HON.^

W. SCOTT GWN

ibN. SHEG. FARMER

HON. JULIE A. EDWARDS

judgment of the Court of Common Pleas, Guernsey County, Ohio is affirmed. Costs to

appellant.

37.

APPENDIX XY, B

APPENDIX XfiK

IN THE COURT OF COMMON PLEASGUERNSEY COUNTY, nHIp

GUERNSEY CO,.PROSECUTORDANIEL G . PADDEiN801 WHEELING AVE.CAMBRIDGE,OHIO43725

PLAINTIFF-APPELLEECOUNSEL FOR THE STATE OF OHIO

VS.DEFENDANT-APPEI,LANT PRO SEHENRY N.HARPERP.O.BOX 5500CHILLICOT.HE,OHIO

45601

JUDGE:DAVID A.ELLWOOD

CASE N0.10 CR 70

APPEALS CASE N0.10 CA 44

AFFIDAVIT OF STATEMENT

I Tina Harper being the spouse of the Defendant-A --^Ppeilant do

hereby swear or affirm tha^t I was not Kidnapped,by my hmsband the

Defendant-Appellant,that i never filed a Complaint or stated..that

I was Kidnapped.i have stated to all three of my husband's

Attorneys,Wi,lliam Nicholson,jerry McHenry,and Lindsey K.Donehue,

that I TgAS NOT KTDNAPP.ED. I was called into the Prosecutor's

office twice,once on August 4,2010 and on October 12201©,.both

times I told the Prosecutor Danie1 G.Padden that I was not

ziidnapped, to drop the Kidnapping ch.arges. I WAS NpT KIDNAPPED.

I testified at Trial,when asked if I was Kidnapped,that I was

NOT KIDNAPPED.See Trial Transcript Page 325.

I Tina Harper swear or affirm that the facts stated in thisAffidavit are true to the best of my knowledge and belief.Thatthe information stated in this Affidavit is true, accurate, andcomplete.I understand that if I do not tell the truth that I maybe subject to penalities for perjury.

DATE^ saGNED^

NOTARIZED BY

SIGNED PRO-SE-%^JLDATE

Vft 3 9,

EXHIBIT 9X APPENDIX C

PAGE TWO OF FOURENTRY - CASE NO. 10-CR-70

4, There were three appeals filed in this case; two of which are currently pending:12-CA-03 and 12-CA-08.

The Court finds Defendant alleges that he was prevented froni obtaining anyevidence to file a petition in the time required by R.C. 2953.21> Further, that sinceRon Couch was his appellate counsel, which prohihited Harper from acting as co-counsel.

6. The Court finds Defendant alleges that he did not know the Court of Appealswould base their opinion on the incorrect, false, etc. infoimation provided by theState of Ohio.

7. The Court finds that although the Court of Appeals did misstate in their decisionthat Defendant was convicted of kidnapping, a felony of the first degree and afirearm specification to Count One as provided by the State of Ohio in their Briefof Plaintiff-Appellee filed with the Court of Appeals on May 11, 2011, themisstatement of degrees and convictions does not change the substance of theCourt of Appeals decision. T'he Court notes that Defendant was convicted ofKidnapping, a felony of the second degree, and was not convicted of a firearmspecification as to Count One of the Indictment.

8. The Court finds Defendant alleges that there was a Constitutional Error for anillegal search and seizure for that there was no search warrant, a waiver was notasked to be signed by anyone, deputies were searching the home before TinaHarper was home, and that deputies looked through the home while Defendantwas not present.

9. The Court fmds Defendant alleges that Tina Harper was threatened with criminalcharges, lied to, and illegally detained by police.

1f1 T.I ^ at_..a E^ ^7:11:,. F^^'",^^>' `7 .`tl.,1 v. 1 ne CC7L:rt Iilid.siêlt,llUi^.Ilt [I1l1iZgG$ lld'ci^ +ârll^Y ililaTias âuai.r^,iLUZv ieiL f: v'iuenc.a,9

changing the date on the Miranda Rights f orm and altered a cassette tape.Defendant also alleges that there is conflict with Williams' trial testimony as towhether Harper shot the car, the car and the house, or up in the air.

11. The Court finds Defendant alleges that no witness accused Harper withKidnapping and Tina Harper said that Defendant did not kid'nap her.

12. The Court finds that the Court of Appeals held in their decision dated September9, 2011, that "Appellant's eonviction for Kidnapping is supported by stzfficientevidence, and not against the manifest weight of the evidence."

40.

APPENDIX D

EXHIBIT K BALDWINS OHIO PRACTICE CRIMINAL LAWS AND RULES A_1118KATZ & GANNEILLEI, ELEMENTS OF CRIMES

^Veapons-Dischargittg Ftfearms

(1) Discharge of firearm(2) (a) Upon, over, or within 100 yards of a cemetery withoutqfficial permission, excepting a person who discharges a irearrnwnile on that person's own lar.^d.

(b) On a lawn, park, pleasure ground, orchard, ar otber groundappurtenant to a schoolhouse, church, or inhabited dwelling,the property of another, or a charitable instit^ition, excepting aperson w5o discharges a firearm while on that person's own

enclosrire.(c) Upon or over a public road or highway

PENALTYDivision (A)(:1) or (2), Niisdemeanor, 4tn degrec (2929.21 ta

2929.28 2929:31)llivision (A)(3), Misdenieanor, lst degree (2929.21 to 2929.28,2929.31). Tfviolation created substantial risk of physical Irarm toperson or caused serious physical harm to property, Felony, 3rddegree. if vioiation ca.rsed physical harrn to person, Felony, 2nddegree. If violation caused serious physical harm to person,Felonv, lst degree, (2929.11 to 2929.19, 2929:31)

Weapons-Endangerin; Aircraft or Airport O13era-

tious-2909.08

ELE'vIENTS OF Tf-_ T CRIME

DkvtsiCYtt (A):

(1) Knowingly(a) Throw object at or drop object upon inovin° aircraft, or(b) Shoot with bow and arrow or discharge firearrn, air g"n orspring-operated Uan at or toward any aircraft

Any how and arrow, airgun, 6pring-oriented gun or firearni usedirt felony violation of this section shall be seized and forfeited.

Weapons-Failure to Secure Dangerous ()ra'

nan c e-2923 • 19

EI.F1ti2ENTS CSF THE CRIME

(1) In acquiring, possessing, carrying, 'wsing

(2) Dangerous ordnance

(3) Negligently fail to take proper precautions

(4)(a) 'To secure against theft, or acquisition or use by unautho-rized or incompetent person, or

(b) To insure safety of persons and property

PF VAL'rY

iVfisdemeanor, 2nd ciegree (2929.21 to 2929.28, 2929,31)

Weapoiss=Ha.-ving While Under Disak,ility-2923.13

ELE v1ENTS OF THE CRTIE

(' Unless relieved of disability unac ^^:+23.14i)

(2) Knowingly acquire, have, carry, Lse

(3) Firearnr or dangerous ordnance

(G)(a) Being fugitive from justice, or

(b) Lrnderindictrsient or convicted of any fe}caf o`fense ofviolence oradjudica.ted juvenile delinquent for comriiss:on ofan offense that, if committed by an adult, would have beer, afelony offense of violence, or

(c) Under inorcTmeiit xv vr co ed ot rr nreviousiy convict-

ed of offense tnvolving illenal posse.ssion use saie adm ristration, distribution, trafricking iri drug of abuse or adjudicatedjuvenile delinquent for commission of an ofie7se that, tf com-rziitted by an adult, would have been an offense involving theillegal possession, use; sale, administration, distribut;on, or

trafficking in any drug of abuse, or

(d ) Drug dependent person or in danger of drug dependence

or chronic alcoho'tic, or(e) Adjudicated mentally incompetent

Division (13;):(1) Kzrowingly or reckless':y(2) Shoot with baw and arrow o discharge a firear:-n, air Qun orsprii:g-operated gun npon or over any airport operattor.al surface

EYCEPTIONSDivision (B) does not apply to an officer, agent or employee ofthis or anv other state or the L?rited States or a law enforcementofficer, authorized to discharge firearms and acting Fvith;n thescope of the officer's, agent's, or employee's duties:

I.livision (B) does not appiy to a person who, with the consent ofthe owner or operator of the airport op :a*ional surface or theauthorized agent of either, is lawfully eng^Jed in any huatir.g orsporting activity or is othenvise iawfully discharginII a frrearm.

PENAL?'IIf Division (A) violated, Nlisdemeanor, lst degxee (^2929.21 to

2929.28, 2929.31)If violation of Division (A) create.s a risk of physical harin to anyperson, Felony, 5th degree (2929.11 to 2929.?8; 2929.31}

If violation of Division (A) creates a substantial risk of phvsicalharm to any person or if the aircraft that is the subject of theviolation is occupied, FelorYy, 4th dea:ce (2929.1] to 292y.18,

2929.31)Tf. Division (B) violated, IvlisdemeanUr, 2nd degree(2°29:21 to

2929.28, 2929.31)If violation of Division (B) creates a risk of physical harm to anyperson, Feiony, 5th degree (2929.1I to 2929,1v, 2929.31)

If violation of Division (B) creates a substantial risk of physicalharnt to any person, Felony, 4th dearee (2929.1, to 2929.3.8,

2929.31)If violation of Division (B) occurs while hunting, violator shaliadditionally have hunting l:cense or perni;t suspended or revoked

pursuant to 1533.68. @ &.2 Y

PENALTYFelony, 5th degree (292911 to2929.13, 2929:31)

If a person w'ho has been convicted of a felony c:f the lst or 2nddegree violates this section within 5 years of the date of theperson's release from imprisonment or from post-release contrc,lthat is imposed for the commissroti of a felony o^tehe lst or 2nddegree, Felony, 3rd degree (2929 11 to 2929.13, ..9_.,,3.1)

'4N'eapons-lllegal Manufacturing or Processing 1%x-

plosives-2923,17(B)

YL.EivIENTS OF^TI-IE CRIIvI£.

(1) R4anufacture or process at any location within Ohio

(2) An explosive

DEFENSEThis sectr-on does not applyrf tlie person has been issued alieense certificate ofrcgstraticn or pcrm,t to manufacture orprocess explosives from a fire official of a political subdivision ofthis state or from the office of thefire marshal.

PEN AI.TY

Felony, 2r1d degaee (2929.11 to 2929.18, 2929:31)

41.

APPENDIX N E

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testimotry was yesterday. Because he told me if I Page 4 93

^Page 491 ^

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didn't, there was going to be Pretty much hell to paY So, no, she didn'# do that.pay. There's going to be hell to pay. 2^d thet^ we've got tn estahlish t1 âi it

We got hell to pay out at Ratliffs house 3 was _used.,to fa iliâtc.tlle con:rnissFnr, 0i ^ny telony.Well, there 's a half a dozen here. We've got.and we've got he11 to pay at the Harper house. Why?

5Because of him, right there. Tlxat's what's voin felonious assault when you go shoot up towards -- atrhµ+;^°nr ^ ^ g on 6 or near someone's house. You've got vartrtal;cn,, uP

b t 7 went and he shot at -- he was going out there -- heForce, any vialeilce, coznpulsion, or8 told me was going out there to shoot up the truckconstraint, physically exerted by any means upon oi- 9

the truck Ratliff uses in his business, in his tradeagainst a person or thing. He's waving the butt of 10 ,.business.the gun at Tina Harper. He's threatening her with ^12 or

the gun. He tells her: I'll beat your head in with The ride liome; he goes and lzides that gun.this. 12 You've goi the possession, you've got him havt.ng t^ ^

Ladies and gentlemen, tliere isn t any, 3 gun while uiider disability. You've got a ti=+o1e slewanything other than that's force. i ^ of felonies there.

And while we're on that, what's this ^15 Ti:e ;êfendarrt is biirlty of kidna in and16 I^P b:defendant tell Detective Williams on May 10th, Monda, 17 we would ask you to return a verdict of guilty formorning, after he's read his rigl^ts? He tells him -- the kidnappiilg;

and you have this before you. This is froni State's t8 ^r'^ CQ^T° Thirteen niintttcs have beeiiExhibit G, the transcript. You: heard it on the tape,

20 sed.

Exhibit F. Play the tape when you get to the jury ; z 1 M^ PADDEN: Thank you, Judge.room. You got it. Clearly he 's guilty of•the ftrearm

Page 3, line 26, Detective Williams: "Do 1^ 3 specification; as I've aIt•eady established.you remember if you forced Tina to drive you there? ^24 N/^ ^^^diiapping, you heard Tina Harper

"I was pretty drunk. I rnean, she wouldai't testify' No1 don t tliink sa, Her opinion on the25 law, although ve ry important, is not contrnilina.

Page 4S vl;

1 have had no choice in it. Yeah, I'm oin to sa page 4 942 yeah, I probabl g g ^' ^- That's yoâr job.y yes, I did." Mf3 You better believe he did it. He told 2 The actions of this defendant on May 7,4 Detective Williains that on i1%fay I Oth. He told 4 2010, meet each and every element of kidnapping, and

3

you we've proven it to yoir beyond a reasonable doubt.s here on the witness stand today he never said that. 56 You be the judge of character. That's yourjob. You 6 You caii"t do this kind of tliing to somebody else.7 be the judge of who's -- what's worthy of belief and 7 You can't do it.8 what's not. Okay. Why is kidnapping not in the police9 8 reports? Becattse that's what the graiid jury returnedSo was Tina liarper forced? She told you 9 the indictment for.

10 she was. The defendant told Detective Williams in 1G11 the statement that you have before you on May 10th ^1 ât°s this defendant want you to believe?12 that he did. Clearly he forced her. He yvants you to believe he's so intosicated he can't

12 do it• I'm not going thraugh all those things, but13 Next, remove her from where she was found 1314 or restrain her libe you mean to tell me he was so drun.k he couldn't pu11

rty. Clearly he removed her from w 14 the trigger, so drunk he couldn't wave the gun, so15 where she was found. She didn't wai:it to go. He made I S drunlc he couldn't stick the gun in Mr.^- 6 her go to the Ratliff house, to drive him there so he 1, 6 ^ Webb's face,17 could go out there and make hell to a for so dnink he couldn't put the gun on the picnic table,1 8 Mr. Ratli.ff p Y 17 he couldn't drive the van and pull it bc lzind the

18 house, he couldn't ask Dalton for a beer, he couldn't19 Now, did she run away? No. Was she ^.2 0 scared? Yes. I su ose ^ 19 do all of the nine coznnlands that Deputy Scurlock told

Pp , you know, in a perfect ; 2 0 him. from show rne ou_r21 world, yeah, yau jump out of that car at the as 121 Y- ha.nds, come off the porch, set22 station g the beer down, turn around, put your hands behind, you ru.n like hell over

the hi1l, but what if ? 2 your back, walk to thecruiser, get in the car, sit23 l1e catches you? You'vegot to go home. What the 23 in there? Come on, ladies and gentlenien. You're so

24 hell happens when you go home? I'li tell you what 24 drunk you can't do all that? You didn't hear an of25 happens. What lie said; There's going to behell to 25that t(:stimony. No. It'ss uoke and ^ y

rnlrr02'S.

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Vlilliams or any - or you say you spoke with -- you}

thiiuk it was Officer Best; is that correct?'A. Yes, I tiunk zt was Officer Best.

O^kay^ Au^,tuue dtd exther of theQ.officers, did the.y tell,yau that ^^ would beôsszble^„^that char;es could come agains} y ou .for yourinvolvezne-nt^nthis -4

A-• -.:^ê^^--3.vQ. Okay When did th.ey teL1 you tha.t?„^...^ •::- • ::..Â. Welli when I gotreleased and then aaan.

Officer Best told me tha whenever he came out to myhome to searcix, ton.

1:^ c'oarêd?_16 A' Yes.

ka y. Andtheâgainafter ay u had &,ven117 Q. 013 your statem.ent, the^ told yau agam that ôu coulet he

^ :,.

19 charged? ,20 A. WeOfficer Best did .21 Q. .Afleôu kâd g^^g^ ^+oc^x sYatxment.22 Officer B id that --23 A. Wtll, about a svee_k wze11, ôt ve=rông24 after that, he came out to searchmy property__.. .:^;.^..^,^-^..^^,..^ -^•25 ^ ^ ' ^;-„°`'

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Page 324

_ _- -:as,+JL _1 A.

.Yes, ^So

2 Q. Oka . botb. ttmes that ôu w„êre told3 that you could be,cliarged.for yôu învs^lvement in.4 tll.is, it was don, g at vQ1zhause?5 A. No^ tê_ fi^str^ ; e^ !?n re when^ . . ^. ^^..6 the firstv ^ I ^hink tf^was ^^ ;m^;hnê L^ M,no •t,^•7 sure.8 Q. 1Y111C-iu3y.u.^0.

9 A. And then the second time ves it was at^-:^.^,.:•^,.,^,^^,^^'^. -10 m I1se

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11 Q. But you were toxd nor to givua thzs.12. statement tl?atyq^d be caraed?13 A. I could bes^14 Q. Okay. Durang that I'm going to say about15 12, 13 hours when you were transported to the station16 until. y3u gave your statement, you had pleilty of time17 to think then, didn't you?18 A. I was thinking about my children.19 Q. And a^t an poaz^t clid vou At3l'4 -1;ây.lae•<=-2 0 you might be gethng jn trtraubê foz this?21

r:...o-e^,A^

22 Q Ok^ [p.u^nt^1 this oint, had any of tlze23 officers said thing to Zou atiout, o were oua ^ ^ . .. .. ,...24 ki adgWd^s

82 (Pages 325 to 328)

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1 Any®dy_a^kÔ^f you,were kidnaped?^maam.2 A. ...No,

3 Q. When the officer ere ât6our-^ w:^:.^4 house, afrer you had ooYne hack from Charles Dalto.5_..whX dirin't you tell tliezn^that H^ kidnaedu;6 A. Why riidn.'t It.ell them? That night it wa7 a scary night, so I'm just not - everything wase happening. I didn't know. I was just trying to9 protect my children and -- no, I dAdn't sa anvthi^ .:

10 Q. You didn't want to get in trouble, di•.

iz13 Q. Okay. As Attorney Padden had asked you,

.s.f:r.-asek^^.e.e • ._ ....^:nwx-r.r.. .

14 :new that what h^îened vâs.^vYông, andxou_c^.aiaui-ÂK5h.a4aar... .

^ 5 ^War^t to get in trouble, xs that_cprrect?U,Â.. Yes, that's true,

17 Q. go;tânother d^ficu^t qêsîan foz t> .:^1$y you, Tina.19 Do you think that Henr,^kidnaed Xou?

L,i(,

20 A. ee ore .. . e s}vas a omes" c21: betyveen a mau an wife.. ___ •22 îv en you say °dom.estic,° you mean li23 a domestic violence or do you mean just this was a24 domestic situation and that the two of you should25 have been ieii to tivork it outn

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A. More like a domestic violence, yes.TBE COURT: Counsel, I'11 advise both of

you, I've been as lenient as I can to both, sides forequal time. You've had equal time, and we're nowfive minutes after five. I will have to direct youto either conclude or recall the witness tomorrow.You may have some additional time as may be necenow. Let's continue for a very limited period oftime. We're at 5:07. Continue, please.

MS. DONEHUE: Thank you, Judge.Q. Tina, do you believe that you were

released in a safe place unharmed?A. Yes.

MS. DONEHUE: I know this has been verydifficult for you, Tina. Thank you for being here.

ThM WITNESS: Thank you.THE COURT: All right. Mr. Padden; is

there anything farEh.er? It wiL' have to be verybrief. Let's see if we can conclnde the witness.I'II give you each the opportunity for recross, very,very briefly,

Ladies and gentlemen, I told you we wouldtry to recess at five. I'm going to extend it forjust a few minutes to try to fini-Qh.

Mr; Padden>------_____^

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APPENDIX G

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A. Chrissie.

Q. Okay^r-A?^ Aay any$lg tChrissie ahout Henty kidnapping you?,

Ae No, ma'am.Q.aW Did you say an5 thing to Charles?A. No , ma'am .Q. Okay Did they ask you whatwas wrong,

what was ^Qr^..A.Q. Okay. If you felt -- Tina, this is going

to be a difficult question, but it's important for usto know that if you felt so threatened and afraid ofHenry and afraid of what he was going to do, whydidn't you tell anybody? Why didn't you ask forhelp?

A. Because in the past I've done t3aat. Itdon't do no good to involve anybody else.

Q. Okay. You go back to your home and thereare a couple of officers tlxere. Do you rememberthat?

A. Yes, ma'am.Q. Okay. Do you remember what you first saic

to them?A. IVYo, naa'am.Q. Okay. Do you remember anything that they

told you that night while they were at your house?A. No, ma'am.Q. Okay. Had you been drinking that night?A. No, ma'aan.Q. At sona.e point then in the evening you took

the officers to Charlie's house; is that correct?A. Yes, ma'am.Q. And at that point did you drive your

vehicle and they followed you or what had happeAied?A. No I rode tiiey told rcze if I wer^t with

them, they'd brangyme back home So I rode in thecruiser to take h7 ►rx over fhere but

Q. Did they put you in, handeuffs?A. No, ma'am.Q. Did you ride in the front seat of the

cruiser, back seat of the criiiser?A. Back seat.Q. And so didyou get in the back seat

yourself or did they escort you in the back seat?A. No, I got in the back seat in.yself.Q. And they told you that all's you needed to

do was take thenz to Henry and they would bring youback lwnae?

A. jyo^ thev wantcd me to come down to thestatAonând tall. to th^ zn ^h^ n Y waited fivf uiifiîCes,°

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Q. Did they make you change out of yourclothes?

A. No, ma'am.Q. Okay. When you spoke with Detective

Williams, do you remember telling him that ilenry wa;crazy?

A. Yes.Q. Do you reniember telling him that he had

been driirking and his eyes were glazed red and hecouldn't hardly walk at one point?

A. Yes, ma'am.

Q. Okay, And you know that that night Henryhad been drinking beer and vocika; is that correct?

A. Yes, nia'am.

Q. Okay. And Detective Williams, he had readyou your Miranda rights; is that correct?

A. Yes, ma'am.Q. And you generally understood what those

rights meant?A. Yes, ma'am.

Q. Okay. We've heard them all before. Whenyou're watching TV: You've got the right to remainsilent, anytlling you say can and will be used againstyou, you know, et cetera, et cetera, et cetera.

Do you remeznber him reading you those

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-1 then they took ine back and locked me up so --2 Q. Okay. So you were at the station. You3 11ad gone by, you showed them where Hemy was; they

4 got Heniy. Were you and Henry riding in the same car5 to the station?

6 A. No, ma'am.

7 Q. Okay. Wheu you got there, you say that8 they -- that they had you wait for five minutes?9 A. About flvp or tQ?l minutes.

sa Q. Okay. And then what happened?1? A. 1 waited forrtktem to come tailt,tu mc.12 lnstead they tnok ^^ Jâc,k and loLlêd ût nê zn the13 holdincell.

14 Q. Okay. Did they book you into the jail?15 A. I'm znot -- I think they took my16 fingerprints, I'm not sure. I thiaik they did.17 Q. Did they take a picture of you?18 A. Yes.

9^ 9 Q. Okay. We've all seen them there where,120 you know, you're standing against the height chart

21 and they take a picture of you and a picture of your^ 22 pi-ofile, too. Is that how it was?23 A. Yes, ma'am.

N24 Q. Took your fingerprints?25 A. Yes, ma'am.

Y" ^CI ^ N V91f*-M 01t'dye ,31tS

d0807778-a9ce-48be-bc1o-34294b85b43b

APPENDIXGUE€tIdS^Y COITi:I'1'Y

COURT OF COPIMQN P4LEAS COURT TRANSC(CRIPTS arDETECTIVE SAM WILLIAMS COMMIT7'I11G P:P-R^^"Case• 2:11-cv-0; -MHt,N-CviRA Doc #: 26 Filed: t^5/1^11^ Page: 6 of 11 PAGEID ##; 16

{ of 11)cASE NO.72- EXIIXBSmS iri :t~saq No.2:11 CV

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2 z ^.• ®ur repotiing systern, it's called LEOT,and avhen the report - slvbenyou're indtdating a

3 report, there's certain requirement94 tlzat ea e made In

these reports that wilp vrrliflate paur repdrt, Once" that report Is tialldated, it is automatDcaldy sent in6 to fh.$t - for the sftttt,stics tu tbere autnnmRt_3epj1y.v C^. Okay. Havc yau ever seen the incidentreport?

A. Yes.Q ®kay, And you°ve seen -^,. Regarrlhag this cnse? I'm sorry.Q. Yes, regardi.ng this casc.ti . Yes.Q, Okay< And

cfln y®n reanember the report?A. Yes.Q. Okay. The initiai iqvcsiigatzan, the

initial charges on there, axe ina=puly dischargingfirearm at or into $bSb1h1tI0II and hg WeilpoTlS

wua under disabs'Iz•t yI is tb:at•cozrect?A. .ieSy

^Q 7here wgs no me.ntzfln^g of a Iadnapp^n on;;. ^n,sa•

a Na^

Q i7kay. A,ad I d t. 4n't bÎêve thet rva`vc

page 4^6^ it was that $ryone had lôwIedge ofllenry°$ formtr3 crima Cen youinforsmthe

C-UZ-Q,o,w that h^pe4ted7.d Jf;ow we were madr nwm.rt?

4 Ct 3+3m-bmm.5 A- tt,t_ the a doritag ^,^ -gntz oa^ Ia°un a.s computerized aresnlaral kasto ^

Q• What is a ..computerized criminaI hfstnry,ccheck?

A. it's thruugh the catnputer systemt alsoknown ,ar I,E^g, t^;,t

Ia,e enforseruent uSes to obtainlnformatien fram - ticxnse pl2te numbers sre rnnthrough t,hfs, socPsal security $umbera. It g}ves youtdersfircatiorl on tvha registered owaers of vehtciesaz•e or If they hayE ,aZ]y crline - criminal history.Q. So it sounds like it comes jap with the

charges and some more idcntifying {a•forizaation aboutan individµal. Is that corrcct?A. Correct.

Q L7o you ha-ve ^,copy gf^hat mputeztzedhyst^ rapoxf ^

Q. Where is that copy?A. rt would be in my Btes.Q. Okay. WotaJd you gct that, please?A. Sure,kb^

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Page 407

1 MS. DONEH'UE, If he may.2 `lM CO'UURT; Yes. He can step down and3 assist, I tion"t know if -- all right. You can4 provide his file to him on the bench. We're to the.5 lzmited pmpase of the LEADS repart from the file .i6 understand at this tiirta.7 MS. JDONEHC1E; Thank you, Judge.9 THB COCTRTt The record will reflect the9 prosecuting attorney'a handed the tile or booklet of

1 o the case to Sam Williazns.11 All eight. You may continue now. He's12 hadicating be's located it.13 M S. DONEHUE: 'Iliank you.14 BY IalM^ DONEHCTE:15 Q¢ - rSid an c.WAxtenzed aNsrunalûstory115 or tlns I.EADS rWrtz does it show thc ultunsta17 yd^spos^txQa^#o^tfie.^^s^7 ,:.18 1^► l^ t# does,, ,19 Q. Oka}+.} Have you seen t.hcse computerized20 cidrninal histories befoxe?21 A. Yes<22 Q. You have expcrience in reyietiving them?23 A. Yes, ma'azzr.24 Q You nan gd through a LF.ADS report and get ;25 a general idea of this person's background

Page 406 ;

3. information?2 A. Correct.3 Q. Have you ever seen a LEADS rer+drt t:4aPs4 been incorrect orhas possibly ever misstated5 inforznation?6 A. I haYe raota .7 Q. Okay. How aRen are these LEADS reportsB updated?9 A. That Idaar't know.

10 Q. Okay. And the LEADS reports or thex1 computerized ct•iznissat history .reports, have you ever^ 12 seen one th,at has inctuded an offensa that !^s been7.3 expunged from a patson's record?14 A. Yo, x have Aot.15 Q. Okay. Have you ever seen a camputerixed16 history repori where there has been some notation1^ 7 that this part of the record has been expunged?18 A. iodo, rna' ® m.19 Q. Okay.20 A. NTy understandirag is ff.the charge hns been21 expunged, it svould not exIst on the printout.22 Q. Okay. And it should not come up in a23 person's cr►minal background check?24 A. . Correct. ^25 Q. And that Nvguld inGlude your cflrnputerized

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A. Right.Q. What did you have?

A. I had my 870 Remington 12-gauge sbotgun.Q. Other deputies have guns?A. It was a nuifure. A couple of them had

their shotguns. Others kept their handguns.Q. All right. Were there lights on in the

home?

A. There were.Q. Was the door open?A. The entrance to the residence is to the -

on the rear of the house as far as going up thedriveway. You would walk around the house. We madeour way around the residence. The door was standingajar. You could see into the residence.

Q. Okay. What did you do?A. We announced that we were the sheriffs

office and if there was anyone in there, they neededto come out.

Q. Did anybody respond?A. It was a while. I mean, a few minutes.

And two juvenile males exited the house.Q. Okay. Did you later learn who they were?A. One was the son ofMr IIarper that I4ved

there, and I believe he had a frten^divith him.

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Z Q. Okay. Did you look inside the house theri?-.2 A. We did.

3 Q. Was there any persons other than those two4 juveniles located at the house?.^ A. No.6 Q. Okay. VVbile you were there, was there a7 phone call from Tina Harper -- a call to Tina Harper8 made?9 A. I bEiieve she call2d the residence.

10 Q. Okay. And did she come to the house a1-1 short while later?1.2 -. A. She did.13 Q. Do you know what she was driving when she

^came?A. She arrived in a silver-gray S-1(1 pickup.Q. Okay. And was anybody with her when she,.

amved?^ A.

Q. .AlI right. Were you given permission --you and other officers given permission to search thehome?

A. Correct.Q. And. did you do that?A. We did.Q. Did you find anything of any evidentiary

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value inside the home?A. We found a partial box of 9 miilimeter

ammunition of Winchester manufacture. That waslocated in the home. And also a couple of empty gunboxes.

Q. All right. Well, let's talk about theWinchester shells first.

MR. PADDEN: May I approach, Judge?THE COURT: You may with your exhibit.

State's Exhibit B was marked for puzposesof identification.

Q. I'm going to show you now what's markedfor identification as State's Exhzibit B, ask you totake a look at tbat.

I Do you recognize that, Deputy?A. I do.

Q. Would you tell the jurors what Exhibit Bis?

A. This is the partial box of ammunition thatwe located in the residence.. Q. Can you open that for us? Can you takeout one or two of the shells that are there?

Okay, And that box is in the same

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1 condition now as it was when you found it with the2 evidence tag being located on there?3 A. That's correct.4 Q. You have the six spent shell casings to5 your right, and to your lef is the two -- two of the6 Winchester bullets that you removed from the box,7 correct?

8 A. Correct.9 Q. Okay. Do the ^xlinchester bullets that you

10 removed from the box, do they have that same mark11 on the bottom of them as the other spent casings?12 A. They do. They have the t'WIlV "13 Q. Does it have the same mark on the primer14; at the bottom that the others do not - that thei5 others do?16 A. No.17 Q. Okay. Is that because they haven't been18 fired?19 A. That's correct.20 Q. Okay. And that's able to be seen visibly21 on the -- comparing the two?22 A. Yes.23 Q. Okay. AIl ri.ght. Did you find any24 weapons inside the house?25, A. No.

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people upstairs to come outside, and they didevenfuaily come outside.

Q. Ard ultirnately you learned -- there weretwo juveniles that came out?

A. ThatPs correct..Q. And one rVas a-- :theHazper boy, he was

about 15 yeai years old, and ius frieud`^ _..:.A. That is correct.Q. Did you look inside the home to see if

there was any other persons there at that time?A. Yes, we dzd.Q. Anybody else in the house?A. Nobody else iu the house.Q. Sometima latex I undqTsfand.^,Tina Ha^per

,sa.aMyedaf_ffie hQuse

-A.^^. . .. Z, . •4':d^py. .,. ->E..::'i v

^Q A:1Trigh^;^ id- eidyou recerve from her

A. Yes.Q. And did you look inside the home for

evidence at that time?A. Yes, we did.Q. Did you find any items of evidentiary

value inside the house?A. We located a box of Winchester 9

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m.illimeter pistol rounds.Q. AU right.

MR. PADDEN: May I approach the witnesswith an exhibit, Judge?

THE COURT: You may.Q. I'II hand you now what's been marked for

identification as State's Exhibit B. I'd ask you totake a look at them. You can open it if you like.Do you recognize Exhibit B, Deputy?

A. Yes, I do.Q. Could you tell the jurors what Exhibit B

is?A. It is a box of partiaLly full, oh, I'd say

there's about 20 rounds left in there, not countingthem, of Winchester 9 millimeter Luger faI1 metaljacket rounds. The box says there's a hundred, butagain I think there's about 15, 20 left.

Q. All right. And did you recover this fromthe Harper residence?

A. Yes.Q. And does it appear to be in the same

condition today as when you recovered it except forthe evidence tag?

A., Yes, it is.Q. All right. Did you later turn this over

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to Detective Williams?

A. Yes, I did.

Q. .A.ll. right. And to the best of youiknowledge, it's been in evidence since then?

A. Yes.Q. All. right, Now, did you stay at that

house that evening?A. Yes, I did.Q. . A.ll right. We've heard testimony ii°o^m

both Deputy Scurlock and from Tina Harper that theyleft to go to another residence to locate thedefendant in this case.

A. That's cgrrect.Q. Did you go to that other residence?A. No, I did not.Q. What did you do then, Deputy?A. I stayed with the juveniles for I believe

it was the aunt who arrived, and also maintafned thescene since the vehicle was still at the scene.

Q. The vehicle being the mi.nivan?A. That is correct.Q. Did you search the vehicles that were

there to look for any items of evidentiary value, agun or anything of that nature?

A. I searched the minivan at uie tiP'ue thai we

Page 370

found it. We found it in kind of a field out backbehind the house.

Q. .All rigght. Any weapons found in there?A. Did not locate any weapons.Q. Anything of any evidentiary value to this

case?A. No.Q. Did you also search the trailer or home --

mobile home, behind the house? .A. There was an abandoned trailer right next

to the van. We did not locate anything in thattrailer also.

Q. All right. You mentioned that an auntcame. That would be the Harpers' son -- the15-year-old Harper boy, his aunt came to take him?

A. I believe it was his aunt or some type offamily member, yes.

Q. .A.ll. right. And then the juvenile, whathappened to him?

A. He had no one to come pick him up, so Ihad to transport him over to Tuscarawas County.

Q. So you drove him from your location onEuga R.oad to his home in Tuscarawas County?

A. Correct.0. Bv this time are vou well tcast the end of

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APPENDIX L

EXHIBIT fi

Ohio Incident Based RePcartang S^^êrp

investi ^^tor ^lote-ARfNT DATE 5t8120-1o t

- - - _ ^c NO:

rI NCIDENT NO: 1(3-0001b0834

iVt^TE lî0:TE DATE 5/S/Z010------ --- -- - -----, ----s--_ --^_ -- ---- ---_ ____ NOTE l"IME:fNVESTIGA14 On:pO RM-iÒr BADGE 3007 _-- ----.^ __-_ ---- --- S W .- - ''--

INVESTlGATOR NAME SAM WiLLiRMS_ - - --- . ,;,-- -_ _ _DOCUMENTATTACNMENT F^

Z-----=^_, DrtrTng the rrrvestTgattjrrr it zoas efiscovered zoJrzle reviewzrtÎ-Iirzr^ HarlTet's corrrpr<terazed eririzinal lzastorlr, report

--=

thatfte>trtf ltad a corrvzctzon rn 1985 forfiggravatect t#ssar[lt a fourth alegree felotty lt appeape^ Za . re corrvictioar was orrt uf

G'reerrese f Corrrttst Corrirzrorz Pleas Cflrtrt Tlrrszvoacld cartse Hcirper to he atrrder rlisabilit-af tn trassess a tt eur trr.

t hcrcl also eolrtacterl tlee vietitrts irt case #1 t3-1510 urtcl tlaep eence Qt^ pjtYsue clturêser aztr^t Fin^, u^----^-.._Ker-^ statzrtg tll,at 1TE It1ZClt11P2atettefl ttI ItfZ7 {rr 1•;letF1 atltl 2reTr fi7ryrill 1 LtrtC^ ZlJlte7t lTe d3t [?Tl^' o

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EXIIIBT`T

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is1617is1920212223242 r-

2010?A. Yes, he was.Q. And where was Henry employed?A. He worked for Little Bear.Q. AIi right. Z'hafi's Little Bear

Construction?A. Yes.Q. f1,.ll right. Now, we have previously heard

the testimony in this case of David Ratliff, and h--testified that he was the owner of Little BearConstruction. Do you know Mr. Ratliff?

A. I ciidn't know his face, but I knew himby - when he called the house.

Q. AlI right. You just knew him as his voiceon the telephorie when he would call the house?

A. Yes.0. Allright. And do you know who your

husband's boss was then, his direct boss?A. No.Q. Allright. And were you and Henry Harper,

your husband, then at Mr. Ratliffs residence on May7th, 2010?

A. Can you repeat that question?Q. Yes. You may be having trouble hearing.

TPm crnln9 to atrnnmvrritP.ctlFlniflA'fnr,xT71nTt1eTlt.; and

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you may have a hearing assistance device.Tina, I use one in the courtroom also, and

it is helpfiil. I'?I continue to talk to allow thebailiff to adjust it.

Are you heazing me better now?A. Yes. -Q. All right. My question was, on May 7,

2010, didyou and your husband, Ilenry Harper, go toor go by Mra Ratliff s residence?

A. Yes, sir.Q. All right. And what time was that,

approximately?

A. I'm going to say it's between nfne-thirt.<. ----.

and teu^_.^^.,;:.......4.^..-, :^Q. That would have been after dark?A. Yes, sir.0. Ali right. And why did you drive - weI1,

first let me ask you, the testimony has been that youwere the driver. Were you the driver?

A. Yes, sir,

Q. And why did you drive Iiemy Harper, yourhusband, to Mr, Ratliffs residence at ten orten-thirty?

A. Because he came home drunk and wasflipping out, and I took him.: He waufied somebody

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Z take him:2""° ^t^"""When you say "flippin.g out," could you3. tell me what you mean?4 A. $e was brea^ things an^nsf ofng nff,^^:^^ ^5 so^[ decided I^yantedhian a

"v^rom.flze: kids^.K1fs±:cw-•R:l-"m..-'^."^21`..X+Ufi^S. HsN15N.^,KY+:°.u+r .1. ...•.

6 Q. All rzght. , Did he have a gun that7 evening?

8 A. Not so much -- I didnrt kinow far__9 undl we gat to Mr: Ratliff's Thexi I heard gunshot

10 Q. qo ouy heard guns4pt^ d H^m Haxper11 fire^ fire^that e^ renin^ ^vbx]era atthe

Sxf. %r^•».^'i .r.., ..+^-.^,^ -CLrst,^-,,,...

12 Ratliff reszdence?13 A. Yes, s ir....r.^14 Q. .A I. Do you know how many sb.ots he15 fired?

.16 A. No, szr.17 Q. And now, you have given two statements, I18 heard a first statement being given aiso:19 You at first didn't tell the sheriffs20 deputies what happened; is that correct?21 A. Yes, sir.22 Q. And then you later gave a taped statement'2 3 where you told them what happened, is that --2 4 A. Yes, sir.25 Q. All right. Now, is everything you've3ust

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testifi.ed been the truth?A. Yes, sir.Q. AII right, Have any threats or promises

been made to you by anyone in this case?A. No, sir.Q; AII right.

THE COURT: All right. We're going totake a moment.

Ladies and gentlemen, were you able tohear the questioning?

Dena, you're rndicating to me that you'renot able to control your coughing?

JUROR HA.R."ITYIAN: Yes.THE CUURT: Counsel, approach the bench

quickly, please. I need to deal wit'i this.JUROR HARTMAN: Can I just excuse myself

for today or --THE COURT: No. If that was possible, I'd

do it, but that would be like just hearing part of astory and not all of the chapters, so it's notpezmitted, You have to be here the whole time.

(At Side Bar.)THE CC)LT1ZT: Is there any objection to

excusing Juror No. 12 due to repeated coughing in thecourtroom and replacing her with A.ltemate No. 1,

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