IN THE SUPREME COURT OF OHIO

STATE OF OHIO, CASE NO. ®R "`0163

Plaintiff-Appellee, On Appeal from the CuyahogaCounty Court of Appeals,Eig'r^txl

vs. Appellate District.

DESHON CURRY. 'C.A. CaseNo. Sg975

Defendant-Appellant.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT DESHON CURRY

Deshon Curry #514-646NAIvIE F.ND NUMBER

Mansfield Correctional Inst.INSTITUTION

P 0 Box 788 , 1150 North Main St.P.DDRE3S

M^^--^fi P1 d, nhi n 4L+9n1CITY, STATE & ZIP

nt p

PHONE

DEFENDANT-APPELLANT, PRO SE

William D. Mason, Esq.PROSECUTOR NAMEThe Justice Center, 9th Fl., 1200 Ontario St.ADDRESS

Cleveland, Ohio 44113 __CITY, STATE & ZIP

(216) 443-7800PHONE

COUNSEL FOR APPELLEE, STATE OF OHIO

EDMAR 2 4,2000

CLERK OF COURTSUPREME COURT OF OHIO

LDDMAR ? 4 2008

CLERK QF CpURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

PAGE NOS.

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUE S TI ON ... ........................ .... ........ ...................... .............................. .......... ............ .... ........ .. .... .. .1

STATEMENT OF THE CASE .......................................................................................................2

STATEMENT OF THE FACTS .... ................................................................................................ 2

FIRST PROPOSTTION OF LAW ...................................................................................................7

SECOND PROPOSITION OF LAW ...................................... 12

THIRD PROPOSITION OF LAW ....................................... 15

CONCLUSION ....... ............................................15

PROOF OF SERVICE ...................................... .......16

APPENDIX

Opinion of the Cuyahoga County Court of Appeals, 8thAppellate District (date of decision October 25th,2007)(date of journalization is unknown) ...................... A

GO .................................................................................................................................

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Nxxxx. AMMX ^mmmwx

i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGP.EAT GENEP.A..,T IrTT'EREST AA7D' IlVVOLVES A SUBSTANTIAL

CONSTITUTIONAL QUESTIONAND INVOLVES A FELONY

This cause presents three (3) critical issues for the Constitu-

tional rights afforded a Defendant-Appellant within the State of Ohio.

(1) When the Misconduct of the Prosecuting Attorney denys the Appellant

His Constitutional right to confront the Witness against Him, or the

right to maintain His Post Arrest Silence, and the right to a Fair

Trial, the Trial Court has allowed the Appellant's Fifth, Sixth and

Fourteenth Amendment rights under the United States Constitution to

be violated by said Prosecution for the State of Ohio. (2) When a Trial

Court errs in deciding to call the victim as a Court's Witness, in Com-

pelling the Witness to Testify in spite of His Invocation of His Fifth

Amendment Privilege against self-incrimination, in admitting into evi-

dence testimonial hearsay statements, and in permitting improper com-

mentary on Appellant's Post Arrest Silence, a Conviction cannot stand

because the Appellant's right to a fair Trial and Due Process under

U.S. Constitution are violated. (3) When the Trial^Court and Prosecu-

tion commit a combined cumulative amount of prejudicial errors the ef-

fect was that the Appellant was denied Due Process and a Fair Trial

under the United States Constitution and that conviction cannot stand.

In this case the Court of Appeals abused it's discretion by allow-

ing the Appellant's conviction and sentence to stand. This decision

threatens the Constitutional and Statutory shceme in the State of Ohio.

The implications of the Court of Appeals decision affects every citizen

in the State of Ohio, and brings into question the fairness of Ohio's

Judicial system and thereby relating to the Courts integrity.

The decision of the Court of Appeals sets precedent that would

harm all criminal defendant's rights in this State. Finally, this case

involves citizens personal and Constitutional rights afforded by Statute

This Court must grant jurisdiction and hear the case.

1.

STATEMENT OF THE CASE

On March 31, 2006, the Cuyahoga County Grand Jury issued an In-

dictment charging Defendant-Appellant Deshon Curry with Felonious As-

sault in violation of R.C. 2903.11, with one, three and five year

firearm specifications, and with having a Weapon Under Disability

in violation of R.C. 2923.24.

On July 7, 2006 appellant was arraigned. He entered a plea of

Not guilty and was assigned Counsel. On November 1, 2006 his Trial

by Jury commenced before the Honorable John J. Russo. On November 7,

2006 the jury returned a verdict of guilty of Felonious Assault and

of the one year firearm specification. The Jury acquitted appellant

of the other specifications.

Subsequently, the Court also found appellant guilty of having

a weapon under disability.

The Court sentenced appellant to a term of incarceration of five

years on the Felonious Assault count, with an additional consecutive

one year term for the specification. Additionally, the Court imposed

consecutively another three years for the weapons conviction, for a

total of nine years incarceration.

Appellant filed a Notice of Appeal on November 28, 2006 to the

Eighth District Court of Appeals for Cuyahoga County, Ohio. The Brief

was filed in the case on March 23rd, 2007, the Eighth District Court

of Appeals decided the Appeal on October 25th, 2007, their decision

is attached and affirmed the Conviction and Sentence. This Appeal

is as follows.

STATEMENT OF THE FACTS

The State called eight witnesses at trial, Appellant, Deshon

Curry, called two (2) witnesses on His own behalf.

The main witness called by the State Prosecutor was the alleged

2.

victim, Paul McPherson. By all accounts, McPherson demonstarted that He

is a most unsavory character who has earned numerous criminal convictions

including multiple convictions for molesting very young children, drug

trafficking, Carrying concealed weapons while under Disability, Posses-

sion of Criminal Tools, Drug Possession and Escape. McPherson was return-

ed from Belmont Prison to testifying at Trial.(Tr.129,132-133).

In addition to His extensive criminal history McPherson's testimony

proved to be extremely self serving and manipulative. McPherson, when

called to testify, postured before the Court to be reluctant, feigning

fear for His"family". This led the Court to prematurely declare McPherson

to be a"Courts Witness". Outside the presence of the jury, McPherson made

it abumdantly clear that His motive, and price for appearing, was not

fear but rather He sought to leverage His testimony in trade for a re-

duction of His current prison sentences, these sentences were imposed

by another Court, but He would testify as the State's alleged "Victim"

in return for the reduction in sentence. He told the Court He would ab-

solutely not testify in this case unless provided consideration from the

Court, or prosecutor, concerning His imposed sentences. (T.53)

McPherson continued to attept to manipulate the Court into reducing

His sentences by refusing to take the oath, and invoking His Fifth Amend-

ment privilege against self-incrimination.

McPherson's testimony, even standing apart from His criminal history,

and crude attempts to but His freedom, was less than credible. Standing

alone, His testimony was utterly unconvincing.

In Summary McPherson's testimony included, He could not remember,

even approimately, what time He left his girl friend and child to secret-

ly meet another woman at the time-out Bar for drinks. He could not recall

the name of the other woman, but He did recall He arrived back home at

around 1:30 a.m. on March 15,2005, that He consumed exactly two (2) beers.

3.

When Mr. McPherson returned home, He allegedly pulled His car into

the driveway and said He observed a car stop on the street near the a-

pron of His driveway from His rear view mirror. He testified that the

doors of this car flew open and gunfire was directed toward him. He was

not injured because He ducked, thus He did not see the faces of the shoot-

er's. He stated the car sped away, He jumped into another car and gave

chase, although He claimed not to possess any firearms. He stated He did

not know the shooter's, and He could think of no reason for anyone to

want to harm Him.

He testified that He saw a car on the next street over from His as

it was stopped at a stop sign, He began to chase it. He stated a male,

whom He did not know, exited the car and fired a few shots at Him. As

He ducked down by the dash board, while still driving towards the car

at night, He saw, and got a good look at the male from a distance of

thirty feet away. McPherson went on to testify that He continued to chase

and bump into the car, while the males were armed in the suspect vehicle.

He finally caught up to them, in spite of a flat tire, as the other:s were

stopped at a traffic:_ light. As He was calling the Police, McPherson

crashed into the car He was pursuing and pushed the car across the street

pinning it into a fence with His truck so the males could not escape.

He stated He saw the males exit the car with guns, run across the

street towards Benjamin Bar, located about one hundred yards from the

crash scene. McPherson stated He lost sight of them after the Police ar-

rived at the scene. McPherson and Police looked for a gun, but no guns

were ever found. Directly afterward, within fifteen minutes, Lt.Barrow,

acting supervisor, decided to go into the bar and conduct an unorthodox,

and unduly suggestive out-of-court identification procedure(T-354).

All the young African-American males were brought out of the Bar

one by one, without regard to physical descriptions. McPherson had not

provided physical descriptions to the 911 Operator.

4.

McPherson was instructed, by Police, to pick out the guys that

had shot at Him, as the young men were individually brought out Mc-

Pherson could here the individual names called by the Police. While He

was sitting in the Police car, looking at each male through the glass

front windsheild He learned that one of the men taken from the Bar was

named"Deshon"Curry", Curry was one of our males picked by McPherson.

McPherson, however, admitted that He was confused and made a mistake

when identifying one of the males. It was later learned that McPherson

had known Deshon Curry's name because of rumors that He had heard on The

Street that Deshon had been messing with a woman McPherson had assault-

ed a week earlier, McPherson was permitted to surmise that it had been

Appellant Curry who had a possible motive to shoot at him, based upon

many rumors that He had previously heard.

At least one Officer eventually admitted that there was a rear en-

trance to the bar.(T352-353), and that no firearms were found in or at

the rear of the bar, nor were any found on the roof of the bar.(Tr.295).

Police recovered spent shell casing at the scene of the crash,

and in the street near McPherson's home, however, none were recovered

from the area where McPherson stated the Men shot at Him on the street

over. B.C.I representative stated that She analyzed a Gunshot residue

test kit, She indicated that She had no idea if either sample had been

actually taken from Curry, whether it had been taken properly or not

since the Prosecutor failed to demonstrate a proper chain of evidence,

or to lay a foundation for Her testimony. Also, while Her scanning e-

lectron microscope was indicative of gunshot residue, She acknowledged

that these results are not evidence that the sample's provider had fir-

ed a firearm (Tr.39-41). After towwing the assailant's car it is clear

from the record that the Appellant's fingerprints were neither in or

on the car, or any of the shell casings involved in the shooting.

5.

Without corrobration for McPherson's incredible and less-than-

candid testimony, coupled with His repugnant criminal background and

His clearly self-serving and manipulative testimony appearance as

"victim", the prosecutor, with the acquiescence and assistance of the

Trial Court, repeatedly strayed across well-established lines of accep-

table prosecutorial conduct in improperly propounding damaging testi-

monial hearsay testimony concerning appellant's guilt and His post ar-

rest silence from experienced Police Officers. (Tr.344,401,402,399).

The Trial Court also improperly served to bolster the credibility

of McPherson's testimony when it prematurely declared McPherson to be a

Courts witness; repeatedly referring to the alleged victim as "My Wit-

ness", when addressing the jury.

The Court also impermissibly disregarded McPherson's repeated at-

tempts to invoke His Fifth Amendment privilage against self-incrimina-

tion without either further inquiru or the appointment of Counsel. This

resulted in the Court compelling testimony from McPherson without the

prosecutor requesting immunity for their victim's testimony. This de-

prived appellant of the opportunity to pursue impeachment of McPherson

on these grounds.

All of these prejudicial errors were greatly exacerbated by the

highly improper, misleading and inflammatory comments in the State's

arguments to the jury, which highlighted the impermissible testimonial

hearsay, silence of the appellant, and the ostensibly special status

of the Court's own witness, McPherson.(Tr.436-437,469-477).

The Juries apparent compromised verdict clearly indicates that the

Jury was most likely confused by the errors of the Trial Court. Clearly

the cumulative effect of these errors deprived appellant Deshon Curry

of His Constitutional right to a fair Trial.

6.

LAW AND ARGUMENT

1. WHEN THE MISCONDUCT OF THE PROSECUTING ATTORNEY DENYS THE APPELLANT

HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM, OR

TO MAINTAIN HIS POST-ARREST SILENCE, AND RIGHT TO A FAIR TRIAL,THE

TRIAL COURT ALLOWED THE APPELLANT'S FIFTH, SIXTH AND FOURTEENTH A-

MENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION TO BE VIOLATED

BY SAID PROSECUTION FOR THE STATE.

A prosecuting attorney for the State of Ohio has a constitutional duty and an obligation to

assure that a criminal defendant receives a fair and impartial trial. State v. Staten (1984), 14 Ohio

App.3d 78, headnote one_ The duty requires the prosecutor to adhere to acceptable methods in

attempting to secure a conviction. Thus, the prosecutor must follow the rules of evidence. He must

have a legitimate basis for making a request that the trial court "call" a witness to testify, and he is

prohibited from offering testimonial hearsay statements. During closing arguments, moreover, the

prosecutor must refrain both from alluding to evidence not presented to the jury and commenting

upon the defendant's choice to invoke his privilege against self-incrimination. State v. Smith (1984),

14 Ohio St.3d 13; Griffin v. California (1965), 380 U.S. 609.

A review ofthe record in this case demonstrates the prosecutor flaunted each ofthe foregoing

proscriptions.

First, prior to questioning the victim of this crime, the prosecutor requested the trial court to

declare him hostile to the state's position and permit him to be summoned as a"cour['s witness."

The prosecutor made this request in derogation of Evid.R. 611(C) and 614(A), since the record

reflects it he did so without a legitimate basis and without laying any foundation.

When the trial court inquired of McPherson his reason for his reluctance to testify for the

prosecution, he initially suggested he feared for his family's safety. Soon thereafter, however, it

became clear that the prosecutor simply had refused to give him any consideration for testifying.

7.

8

McPherson actually fully cooperated in providing details of the incident.

Under these circumstances, the prosecutor benefitted twice over in persuading the court to

summon McPherson as a witness pursuant to Evid.R. 614(A). The prosecutorwas permitted to make

no promises to a convicted felon, and the witness called to present the state's case-in-chief became

clothed with the dignity and prestige afforded to the trial court itself. See, Patton v. Pattan (1963),

1 Ohio App.2d 1; cf, State v. Dacons (1982), 5 Ohio App.3d 112.

Pursuant to Evid.R. 611(C), a party that calls a"hostile witness" may conduct his

examination "by leading questions." The record on this case reflects the prosecutor sought to use

McPherson "in a prior case of Jamal Allmond, as a court's witness," but there is no indication that

McPherson either "surprised" the prosecutor with his testimony or refused to testify for the

prosecution in that case. Id.

Throughout his final closing comments to the jury, the prosecutor cleverly used the court's

decision to characterize McPherson as "its" witness to bolster tha argument that McPherson's story

was credible. Whereas McPherson might be in a position to manipulata the prosecution, the trial

court, on the other hand, was not going to "step up and get involved with cutting [him] some type

of break now that he's in jail***. That wasn't an option." Instead of obtaining any consideration

from the prosecutor for his testimony, "[h]e was called as a Court's witness." Therefore, since

McPherson "[w]as given absolutely no deal by this Court[,] [w]here is the evidence of bias? None.

There's no fact in" any defense argument to the contrary. (Tr.469.)

As to the second type of improper conduct, the prosecutor sought testimony concerning out-

of-court identifications made of appellant by persons not called as witnesses through questions of

the police officers who responded to tha scene, in spite of the Sixth Amendment's Confrontation

8.

9

Clause, which guarantees a criminal defendant the right to be confronted by the witnesses against

him. Crawford v. Washington (2004), 541 U.S. 36.

In Crawford, the United States Supreme Court held that a "testimonial statement" of a

witness who is absent from trial may be admitted only when the declarant is unavailable, and only

when the defendant has had a prior opportunity to cross-examine the declarant. Id at 39. The court

defined "testimonial" to apply to statements made to police who are conducting interrogations.

Thus, "ex-parte in-court testimony or its funetional equivalent" falls within the definition. Id at 53.

Statements that were made under circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a later trial are "functionally equivalent"

to "ex-parte in-court testimony." Id.

The record in this case shows that during cross-examination, in answer to defense's counsel's

legitimate question about McPherson's identification of her client, Lt. Barrow volunteered

impermissible testimonial hearsay. Barrow asserted McPherson's description of the suspects who

ran into the bar "coincided with* **the security guard telling us who had also ran (sic) into the bar."

(Tr. 344.) Defense counsel rightfully objectedto this highly improper answer, and the trial court not

only sustained her objection, it instructed the jury to "strike the response."

Nevertheless, the prosecutor subsequently proceeded to flaunt this direct order. Det.

Williams, who sat at the prosecution table during this admonition, later was called as a defense

witness. During the prosecutor's cross-examination of Williams, he asked if the detective talked to

the bartender that night. (Tr. 401.) Williams gave a testimonial hearsay answer by stating that the

bar owner informed them "that we had the right people, and she would try to find out for me who

they talked to, and see did they give him a gun."

9.

10

1'he prosecutor made no attempt to indicate the bar owner was "unavailable" to appear.

Furthermore, it is important to note that, in addition to the totally improper nature of the foregoing

testimony, the record also reflects the prosecutor ambushed defense counsel with this information.

On redirect examination, defense counsel asked Williams where in his police report he had noted

what he leamed from the bar owner. Williams responded that he "didn't put it in the report, because

she didn't never (sic) come back with me and give me the information about the gun." (Tr. 402.)

During closing argument, the prosecutor then used the error to enhance his case against

appellant. Indeed, he commented upon the officers' testimonial hearsay to the point of making it

substantive evidence, by asserting McPherson's identification of appellant as one of his assailants

was bolstered by Williams' testimony that "within this twenty-four minute period***he goes into

the bar, and he speaks to the owner of the bar about the incident,***and***[she] tells the officer,

these guys just ran into the bar." (Tr.435-436.) That testimony "corroborates our victim['s]

story***." Again, a few lines later, the prosecutor asserts that McPherson identification of appellant

is "corroborated by our bar owner, who said, this guy just ran into the bar." (Tr. 437.).

Not to be defeated by any statements made by defense counsel during closing argument, the

prosecutor thereafter reminded the jury that not only did McPherson believe his identification of

appellant, but "the bar owner tells the detective, yeah, those three guys, they had just come into the

bar." (Tr. 476.)

Each of the foregoing instances of misconduct flew directly into the face of the Confrontation

Clause, in contravention of appellant's constitutional rights. State v. Allen, Cuyahoga App. No.

82556, 2004-Ohio-3111; State v. Iverson, Cuyahoga App. No. 85593, 2005-Ohio-6098. In view of

the pervasiveness of the error, moreover, it cannot be deemed harmless. Madrigal v. Bagley (N.D.

10.

ll

Ohio 2003), 276 F.Supp.2d 744; cf., State v. Carter, Cuyahoga App. No. 84036, 2004-Ohio-6861.

Similar instances of error occurred when prosecution witnesses testimony

regarding, and the prosecutor later commented upon, appellant's post-atTest silence, in violation of

his constitutional riglit to remain silent.

As previously set forth, defense counsel called Williams as a witness in order to challenge

the thoroughness of the police investigation of the incident. When she asked him whom he had

interviewed in connection that night, Williams, a tl-iirty-year veteran and a detective for nearly

thirteen of those years, responded he made an "attempt to interview the arrested male," who "didn't

want to make a statement." (Tr. 399.) State v. Person, 167 Ohio App.3d 419, 2006-Ohio-2889.

During closing argument, the prosecutor took that errorto its logical extension. He reminded

the jury that when their car was boxed in by McPherson, "instead of staying and speaking with Mr.

McPherson, perhaps asking him,***why did you run us into a fence***, the[assailants] run away.

(Tr. 411.) The innuendo was clear: surely, an innocent person would stay and fmd out what

McPherson was so angry about. Id., at P. 25.

Each of the instances of the prosecutor's misconduct in this case built upon the earlier ones.

The pervasive nature of the misconduct undermines the jury's verdict and leads to the inescapable

conclusion that appellant was denied his right to a fair trial. Id., at P. 36.

Therefore, appellant's convictions must be vacated, and this case remanded for a new trial.

11.

II. WHEN A TRIAL COURT ERRS IN DECIDING TO CALL THE VICTIM AS A COURT'S

WITNESS, IN COMPELLING THE WITNESS TO TESTIFY IN SPITE OF HIS IN-

VOCATiION OF HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINA-

TION, IN ADMITTING INTO EVIDENCE TESTIMONIAL HEARSAY STATEMENTS,

AND IN PERMITTING IMPROPER COMMENTARY ON APPELLANT`S POST ARREST

SILENCE, A CONVICTION CANNOT STAND BECAUSE THE APPELLANT'S RIGHT

TO A FAIR TRIAL AND DUE PROCESS UNDER U.S. CONSTITUTION ARE VIOLATED.

A trial court is vested with discretion to control the proceedings, and, in a criminal trial, is

the ultimate protector of the defendant's constitutional rights. It has the duty, therefore, to exercise

sound discretion in its attempts to "develop the truth." State v. Baston (1999), 85 Ohio St.3d 418,

426.

Under common law rules of evidence, the party who calls a witness to testify is deemed to

have "vouched" for the witness' credibility, and cannot thereafter impeach the witness' testimony.

State v. Adams (1980), 62 Ohio St2d 151, 157.

Pursuant to Evid.R 614(A), the trial court, in the exercise of its sound discretion, may call

a witness on its own motion or the motion of a party. This procedure generally is followed if the trial

court is afforded good reason to believe the witness may provide testimony that conflicts with prior

statements he or she made. Underthosecircumstances,thepartynormallyresponsibleforpresenting

the witness is "unable to test that witness' credibility." State v. Wesley, Cuyahoga App. No. 80684,.

2002-Ohio-4429, P9-10.

Thus, in Adams, the trial court's decision to call the co-defendant as a court's witness found

justification in the facts that the co-defendant still had "emotional ties" to the defendant and had

previously given conflicting statements as to his guilt. Similarly, in State v. Stadmire, Cuyahoga

App. No. 81188, 2003-Ohio-873, the trial court's decision was upheld since the "key eyewitness"

to the crime made "threeprior inconsistent statements regarding the crime and whether the defendant

12.

13

had used a gun." P. 34.

The trial court, therefore, does not abuse its discretion in calling the victim as a court's

witness when it has been provided with evidence that the victim will not provide testimony in line

with prior statements. State v. Wesley, supra. Moreover, the trial court must be impartial; it may not

indicate by its intensity or persistence any opinion on the witness' credibility. State v. Davis (1992),

79 Ohio App.3d 450, 454.

The record in this case demonstrates that the trial court acceded to the prosecutor's request

to declare McPherson a court's witness without an adequate foundation. In spite of defense

counsel's objection on the ground that McPherson was the "complaining witness" and had not

demonstrated any hostility to the prosecution, the court conducted only a cursory examination of

McPherson before declaring to the jury McPherson was present to testify "because I've asked him

to be here." The court informed the jury McPherson was "my witness;" this procedure "happens

every once in a while***in order to handle the law." (Tr.55.) The court proceeded to swear in

McPherson. McPherson cooperated fully in testifying.

As trial proceeded, the court several times took pains to emphasize to the jury McPherson's

special status. (Tr.188,196, 235.) The court further emphasized that McPherson was receiving "no

consideration" to appear. (Tr. 236.) These comments improperly indicated to the jury that

McPherson's story was credible. Indeed, the prosecutor took advantage of them during closing

argutnent; he stated, while the defense could not "back up" any of its arguments "with any evidence

for you to consider as a fact in this case," on the other hand, McPherson "was called as a Court's

witness," and was provided with "absolutely no deal by this Court" for his testimony. (Tr. 469.)

The record thus reflects the trial court conducted an inadequate inquiry prior to declaring

13.

14

McPherson a court's witness. Subsequently, both the court's comments and the prosecutor's

argument conveyed a partiality on the court's part toward McPherson, thereby improperly boosting

his credibility. Under these circumstances, the trial court abused its discretion in calling McPherson

as a court's witness. See, State v. Wilbon, Cuyahoga App. No. 82934, 2004-Ohio-1784, P. 8.

The record further reflects that the trial court compounded the foregoing error by actually

compelling McPherson to testify. The court not only refused to permit him to invoke his Fifth

Amendment privilege against self-incrimination, it refused to conduct any inquiry concerning his

reasons for rasing the issue. (Tr.68, 112-113.) This permitted the prosecutor to use McPherson's

testimony but deprived appellant the opportunity of impeaching McPherson on the issue of whether

he had made a false police report. (Tr. 112.)

Additionally, the trial court permitted McPherson to speculate as to appellant's possible

motive for shooting at him. McPherson testified he had no idea why appellant, whom he did not

know personally, would take shots at him, but "heard rumors" that a woman with whom he's had

an altercation "mess with" appellant. (Tr. 104.) He also heard that he "robbed them." (Tr. 106;

205.) Witnesses must testify only as to things that are within their own personal knowledge. Evid.R.

602.

The court's evidentiary errors in this case deprived appellant of his right to a fair and

impartial trial.

Consequently, his conviction should be reversed, and the matter remanded for a new trial.

14.

III. WHEN THE TRIAL COURT AND PROSECUTION COMMIT A COMBINED CUMULATIVEAMOUNT OF PREJUDICIAL ERRORS THE EFFECT WAS THAT THE APPELLANT WASDENIED DUE PROCESS AND A FAIR TRIAL UNDER U.S. CONSTITUTION ANDTHAT CONVICTION CANNOT STAND.

The record of this case contains numerous instances of error on the

part of the prosecutor and trial court. In view of the less than overwhelming nature

of evidence of appellant's guilt, the cumulative effect of the errors prejudiced the

jury and resulted in His conviction. State V. Person, supra. In this case McPherson

was the only witness that formed the basis of the Indictment against Appellant. The

Prosecutor acknowledged that McPherson was a particularly unsavory character. (Tr.

470). Clearly, the prosecution was concerned that the jury might not believe His

story.(Tr.437;471). Under these circumstances, without any direct corroboration

of Appellant's involvement, besides Mr. McPherson's say-so, the Prosecutor improper-

ly bolstered the victims credibility. Prosecutor asked the Court to declare McPherson

a "Court's Witness" without providing an adequate foundation, He then elicited specu-

lative testimony regarding a possible Motive, also He let the witness introduce tes-

timonial hearsay evidence, almost as if the Trial Court and Prosecutor had rehearsed

this type of strategy. All of these imporprieties were highlighted during closing

argument to further bolster McPherson's story and credibility.

The Trial Court, for it's part, failed to take appropriate action to safeguard

the appellant's rights. It permitted McPherson to testify as it's own witness, cloak-

ed in the mantle of blind justice, unable to invoke His privilege against self-incri-

mination left the Witness desparate to give a story that did not incriminate Him.

Furthermore, the Trial Court permitted the prosecution to transform a impermis-

sible hearsay evidence into permissible substanative evidence of guilt. Without the

foregoing errors, there was little, if any, evidence of appellant's guilt. Since

the record demonstrates the fairness of appellant's Trial is doubtful, appellant's

convictions should be reversed, and the matter remanded for New Trial. Id; State V.

Iverson, supra; State V. Carter, supra.

ODNCLUSION

For the foregoing reasons, appellant respectfully requests that this Court

assume jurisdiction to review the substantial Constitutional Question this case

persents.

15.

Deshon Curry #514-646

P.O.Box 788 (Mans C.I.)

1150 North Main Street

Mansfield, Ohio 44901

CERTIFICATE OF SERVICE

I certify that the foregoing Memorandum in Support of Jurisdic-

tion is being sent by Vegula"'

on this / 5/k, day dit i

S. MaAl to the below listed persons

,2007

William D. Mason, Prosecutor Cuyahoga County,Ohio

The Justice Center, 9th Floor

1200 Ontario Street

Cleveland, Ohio 44113

Clerk of the Supreme Court of Ohio

65 South Front Street

Columbus, Ohio 43215-3431

Deshon Curry-#5'14-646

P.O.Box 788 (Man C.I.)

1150 North Main Street

Mansfield, Ohio 44901

16.

A P P E N D I X

Exhibit #A , Journal Entry and Decision/Opinion of the Eighth

District Court of Appeals of Ohio, Cuyahoga County.

(date of Judgement October 25th, 2007) (date of

journalization unknown by Appellant)

Slip Copy, 2007 WL 3105268 (Ohio App. 8 Dist.), 2007-Ohio-5721CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OFLEGAL AUTHORITY.

Court of Appeals of Ohio,Eighth District, Cuyahoga County.STATE of Ohio, Plaintiff-AppelleeV.Deshon CURRY, Defendant-Appellant.No. 89075.Decided Oct. 25, 2007.

Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-482971.Steve W. Canfil, Cleveland, OH, for Appellant.William D. Mason, Cuyahoga County Prosecutor, by: Ralph A. Kolasinski, Assistant ProsecutingAttorney, Cleveland, OH, for Appellee.

Before CELEBREZZE, A.J., BLACKMON, J., and DYKE, J.

FRANK D. CELEBREZZE, JR., A.J.* 1{¶ 1} Appellant Deshon Curry appeals his convictions for felonious assault and having a weaponwhile under disability. After a thorough review of the record and the briefs of the parties, and for thereasons set forth below, we atfirm.{1j 2} On March 31, 2006, the Cuyahoga County Grand Jury issued an indictment charging appellantwith felonious assault, in violation of R.C. 2903.11, with one-, three-, and five-year firearmspecifications; and with having a weapon while under disability, in violation of R.C. 2923.13. At hisarraigmnent on July 7, 2006, appellant entered a plea of not guilty and was assigned counsel. Jury trialcommenced on November 1, 2006, and on November 7, 2006, the jury returned a verdict of guilty onfelonious assault and on the one-year firearm specification. The jury acquitted appellant on the otherfirearm specifications. The court also found appellant guilty of having a weapon while under disability.{¶ 3} Appellant was sentenced to five years on the felonious assault count, with one additionalconsecutive year on the firearms specification to be served prior to the felonious assault sentence. Hewas also sentenced to three years for the weapons conviction, for a total of nine years incarceration. OnNovember 28, 2006, appellant filed his notice of appeal.{¶ 4} The facts that give rise to this appeal stem from an incident that occurred during the earlymoruing hours of March 15, 2006, when Paul McPherson, the alleged victim in this case, was shot atby appellant. At trial, McPherson testified that after leaving the Time Out Bar, he arrived at his homeon East 185th Street around 1:30 a.m. As he exited his 1998 Ford Escort, he noticed a Kia pull upbehind him, and the front and rear doors on the passenger side opened. McPherson testified thatsomeone shot at him from the Kia while he was getting out of his own car in his driveway. He furthertestified that the shots damaged his car, tires, car windows, house, and garage, and that he jumped intohis other vehicle, a 1991 Ford Econoline truck, which was also parked in his driveway.{¶ 5} McPherson testified that he decided to drive his truck in pursuit of the Kia, which had pulledaway after several shots were fired. McPherson followed the occupants of the Kia through the streets,even though he did not know who they were. He testified that at one point during the chase, the Kiastopped at a stop sign, and appellant exited the car via the rear passenger door and turned and firedshots at McPherson. McPherson testified that he got a good look at appellant, even though he wasforced to duck down below his dashboard to avoid getting hit by the gunfire.

{¶ 6} McPherson next testified that he followed the Kia to a McDonald's parking lot at East 152ndStreet and St. Clair Avenue. He testified that he used his truck to bump the Kia several times as the twovehicles drove through the streets. He was eventually able to pin the Kia against a fence with his truck,at which time the occupants got out of the Kia and, after a moment's hesitation, ran to the establishmentnext door, Benjamin's Bar. McPherson testified that he was able to identify the appellant, along with theother two occupants of the car, when the police brought them out of Benjamin's Bar for a cold standline-up. When asked about his relationship with appellant or any motive appellant may have had forshooting at him, McPherson testified that he didn't know, or perhaps it was because of a dispute he hadhad with appellant's girlfriend.*2 117) Several police officers testified as to what they found at the two crime scenes. PatrolmanDesatnik testified that he responded to a call to go to McPherson's house, where he observed casings onthe ground, the damaged Ford Escort, and bullet holes in the house. Detective Mike Gibbs testified thathe found evidence of bullets and casings at McPherson's home. In addition, Detective Gibbs observedsix casings on the passenger floorboard of the Kia at the second crime scene.{¶ 8} Detective Mike Bell testified that he tested appellant for gunshot residue, prepared the GSR kit,and sent it to the Ohio Bureau of Criminal Investigation ("BCI") for analysis. Lt. James Barrowtestified that he conducted a cold stand line-up with the men inside Benjamin's Bar after talking toMcPherson, and McPherson identified all three men as occupants of the Kia. Barrow further testifiedthat Allniond, the driver of the Kia by his own admission, said he did not have a gun and that appellantwas the shooter.{¶ 9} Donna Rose, a forensics expert with BCI, also testified on behalf of the state. She testified thatgunshot primer residue was found on appellant's hand.Review and Analysis{¶ 10} Appellant cites three assignments of error for our review. Because he has interwoven argumentsthat address botli of his first two assignments of error, we will address them together.{¶ 11 }"I. The misconduct of the prosecutor denied appellant his constitutional rights to confrontwitnesses against him, to maintain his post-arrest silence, and to a fair trial.{¶ 12} "Il. The trial court erred in deciding to call the victim as a court's witness, in compelling thewitness to testify in spite of his invocation of his Fifth Amendment privilege against self-incrimination,in admitting into evidence testimonial hearsay statements, and in permitting improper commentary onappellant's post-arrest silence."{¶ 13} Appellant argues that the prosecutor's misconduct at trial resulted in a violation of his right to afair trial. Appellant specifies several instances where the state engaged in prosecutorial misconduct attrial.Prosecutorial Misconduct{¶ 14} Generally, conduct of a prosecuting atton-iey at trial shall not be grounds for reversal unless theconduct deprives the defendant of a fair trial. State v. Apanovich (1987), 33 Ohio St.3d 19; State v.Papp (1978), 64 Ohio App.2d 203. An appellant is entitled to a new trial only when a prosecutor asksimproper questions or makes improper remarks and those questions or remarks substantially prejudicedappellant. State v. Smith (1984), 14 Ohio St.3d 13.{¶ 151 In analyzing whether an appellant was deprived of a fair trial, an appellate court must determinewhether, absent the improper questions or remarks, the jury still would have found the appellant guilty.State v. Maurer (1984), 15 Ohio St.3d 239, 266; State v. Dixon (Mar. 13, 1997), Cuyahoga App. No.68338. The touchstone of due process analysis in cases of alleged prosecutorial misconduct is thefairness of the trial, not the culpability of the prosecutor. Smitlt v. Phillips (1982), 455 U.S. 209, 219,102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87.*3 11161 Appellant first argues that it was improper for the state to request that the court call PaulMcPherson as the court's witness under Evid.R. 614. Evid.R. 614(A) states: "[T]he court may, on itsown motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine

witnesses thus called." Under the ruling in State v. Dacons (1982), 5 Ohio App.3d 112, 449 N.E.2d 507,the state is not required to demonstrate surprise, but may impeach the witness with prior inconsistentstatements. A trial court has the power to call witnesses in the exercise of its sound discretion. State v.Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d 144, paragraph four of the syllabus. Abuse of discretionconnotes more than an error of law or judgment; it implies that the court's judgment was unreasonable,arbitrary or unconscionable. Id. at 157.1117) We disagree with appellant's first argument that the use of Evid.R. 614 was improper. In thiscase, the state planned to call the victim, Paul McPherson, as its own witness; however, McPhersonopenly admitted to the court that he would not testify against appellant because he feared for hisfamily's safety. He then acknowledged that he would be willing to testify in exchange for time off fromthe prison sentence he was currently serving. At that point, the state's hands were tied, and it requestedthat the court call McPherson as the court's witness, pursuant to Evid.R. 614, since the state could nolonger vouch for the witness' credibility. Once McPherson testified as the court's witness, counsel forboth parties were able to cross-examine him, and the jury was able to determine his credibility.{¶ 18} The trial court did not abuse its discretion in calling McPherson as the court's witness. Facedwith a situation where the victim refused to testify unless he received a benefit from the court, the statehad little choice but to ask for the court's assistance. This circumstance is precisely one for whichEvid.R. 614(A) exists: to bring about the proper determination of a case. A witness whose appearanceis important to the proper determination of the case, but who appears to be favorable to the other party,is a principal candidate for application of Evid.R. 614(A). State v. Brewer (Feb. 25, 1986), FranklinApp. No. 84AP-852. McPherson, as the victim and an eyewitness, was a principal candidate for theapplication of Evid.R. 614(A) when he would not otherwise cooperate with the party originallyplanning to call him. Therefore, the trial court's decision to call McPherson as its witness was notunreasonable, arbitrary, or unconscionable. [FN1]

FN1. Appellant argues that McPherson was denied protection under the self-incrimination clause of theFifth Amendment when he was called to testify. This is a personal right and may not be raised byappellant in this case.

{¶ 19} Appellant next argues that the prosecutor improperly bolstered McPherson's credibility byflaunting in his closing statement the fact that he was called as the court's witness, rather than as awitness for the state. Appellant contends that the jury would be more likely to believe McPherson'stestimony if it thought the court elicited the testimony. We disagree.*4 11201 It is important to note at the outset that it was appellant's counsel, in her closing statement,who raised the issue of McPherson's possible bias as the court's witness. Only after she brought it updid the prosecutor address the possible bias in his final closing remarks. The prosecutor did not raisethe issue of McPherson testifying as the court's witness in his original closing statement. Nonetheless,the prosecutor is normally entitled to a certain degree of latitude in his concluding remarks. State v.Woodards (1966), 6 Ohio St.2d 14, 26, certiorari denied (1966), 385 U.S. 930, 87 S.Ct. 289; State v.Liberatore (1982), 69 Ohio St.2d 583, 589. A prosecutor is at liberty to prosecute with earnestness andvigor, striking hard blows, but may not strike foul ones. Berger v. tJnited States (1935), 295 U.S. 78,88, 55 S.Ct. 629, 633. The prosecutor is a servant of the law whose interest in a prosecution is notmerely to emerge victorious, but to see that justice shall be done. It is a prosecutor's duty in closingarguments to avoid efforts to obtain a conviction by going beyond the evidence which is before thejury. United States v. Dorr (C.A. 5, 1981), 636 F.2d 117.{¶ 21 } The test regarding prosecutorial misconduct in closing arguments is whether the remarks wereimproper and, if so, whether they prejudicially affected substantial rights of the defendant. Dorr, supra,at 120. The prosecution must avoid insinuations and assertions which are calculated to mislead the jury.

Berger, supra, 295 U.S. at 88, 55 S.Ct. at 633. It is improper for an attorney to express his personalbelief or opinion as to the credibility of a witness or as to the guilt of the accused. State v. Thayer(1931), 124 Ohio St. 1; DR 7-106(C)(4) of the Code of Professional Responsibility. Moreover, theCode further provides that an attorney is not to allude to matters which will not be supported byadmissible evidence, DR 7- 106(C)(1), and "[a] lawyer should not make unfair or derogatory personalreference to opposing counsel. ***." EC 7-37.{¶ 22} Having determined that the court did not abuse its discretion in calling McPherson as itswitness, we find that the prosecutor did not act improperly by stating in his finat closing remarks thatMcPherson was the court's witness. First, appellant did not object at any time during the prosecutor'sclosing remarks; therefore, he has waived his right to appeal on this issue, absent plain error. When anappellant fails to object to any of the testimony regarding the above stated evidence, in the absence ofobjection, any error is deemed to have been waived unless it constitutes plain error. In the instantmatter, appellant did not object to the prosecutor's alleged misconduct during his closing argument. Assuch, appellant has waived all but plain etror regarding these comments. State v. Slagle (1992), 65 OhioSt.3d 597, 604, 605 N.E.2d 916.{¶ 23 } To constitute plain error, the error must be obvious on the record, palpable, and fundamental, sothat it should have been apparent to the trial court without objection. See State v. Tichon (1995), 102Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover, plain error does not exist unless the appellantestablishes that the outcome of the trial clearly would have been different but for the trial court'sallegedly improper actions. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. Noticeof plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent amanifest miscarriage of justice. State v. Phillips (1995), 74 Ohio St.3d 72, 83, 656 N.E.2d 643.*5 {¶ 24} The prosecutor's closing remarks do not constitute plain error. He did not misrepresent thecircumstances under which McPherson testified. Ilis closing remarks were not improper, and, even ifhe should not have commented on McPherson being the court's witness, his comments were notprejudicial. To the contrary, the prosecutor reminded the jury that McPherson did not receive anyconsideration for his testimony, i.e. time off from the prison sentence he was presently serving.Therefore, his remarks about McPherson undercut appellant's argument that the witness was notcredible. McPherson had no apparent reason to lie since he was not getting anything in return from theprosecutor or the judge. Therefore, the prosecutor did not prejudice appellant's right to a fair trial withhis closing statement, and the trial court did not err in allowing the closing remarks about McPhersonas the court's witness.{¶ 25 } Next, appellant argues that the state violated his constitutional right to confront the witnessesagainst him. Specifically, he argues that Lt. Barrow offered impermissible testimonial statements aboutwhat the security guard at Benjamin's Bar told him about appellant. Appellant notes that he should havebeen able to cross-examine the security guard because no suggestion was made that the security guardwas unavailable to testify as a witness.{¶ 26} While appellant's assertion is accurate, his argument as it relates to his Sixth Amendment rightdoes not hold up. The court sustained appellant's objection and instructed the jury on this question andresponse. The court gave a curative instruction to the jury that it was to disregard the state's questionand Lt. Barrow's answer. State v. Loza, 71 Ohio St.3d 61, 1994- Ohio-409, 641 N.E.2d 1082. Ajury ispresumed to follow the instructions given to it by the trial judge. State v. Henderson (1988), 39 OhioSt.3d 24, 528 N.E.2d 1237, citing Parker v. Randolph (1979), 442 U.S. 62, 99 S.Ct. 2132.{¶ 27} Once the jury was instructed to disregard Lt. Barrow's response about what the bartender toldhim, appellant loses his argument regarding his right to confront the security guard. Without Lt.Barrow's testimony about what the security guard told him, it is as if the security guard's account nolonger exists, absent either the state or appellant calling him as a witness. Neither side chose to do this;therefore, appellant was not prevented by the actions of the state from confronting a witness againsthim.

{1[ 281 Additionally, there was no error when the state cross-examined Det. Williams about what thebar owner told him. Appellant called Williains as a defense witness and, on direct, elicited infoiznationthat Williams said the bar owner was at the bar on March 15. The court allowed the state to cross-examine Williams on this topic only after it was introduced by appellant on direct. Furtherinore,appellant did not object at the time to Williams' testimony about his conversation with the bar owner orwhen the state raised it in its closing remarks; thus, he has waived this argument, absent plain error.*6 {¶ 29} We do not find that the testimony of Williams about the bar owner rises to the level of plainen-or. In essence, Williams testified that the bar owner did not find a gun; therefore, he did not contacthim for additional information for his police report. It is difficult to see how this lack of evidence madethe jury more likely to convict appellant rather than less. If anything, the jury could find that appellantwas not guilty because no gun was found in the bar where the police located appellant. Consequently,we do not find that the jury verdict was prejudiced by Williams' testimony, and there was no plain error.{¶ 30} Appellant next argues that the state did not allow him to maintain his post-arrest silence. Hepoints to Williams' testimony that Williams tried to question appellant and appellant chose not torespond as being evidence that the police tried to get appellant to make self-incriminating statements.There are several flaws in appellant's argument. First, it is not clear from the transcript which of thethree men arrested on March 15 was questioned by Williams. The transcript of the examination ofWilliams by appellant's counsel states:{¶ 31 }"Q: Who else did you interview?{¶ 32} "A: The victim, and attempt to interview the arrested male.{¶ 33} "Q. I'm sorry?{¶ 34} "A: I attempted to interview the arrested male, didn't want to make a statement.{¶ 35) "Q. Do they have to give you a statement?{¶ 36} "A. No. I went because one of the arrested males told me he wanted to make a statement. WhenI got there, he wanted to make a deal and hit the street, and I turn him loose."{¶ 37} (Tr. 399-400.){T 38} Not only is it unclear from the transcript whether the "arrested male" in this exchange refers toappellant, but police officers do not violate the Fifth Amendment when they ask someone in custody ifhe wants to make a statement, as long as they discontinue questioning when the person in custodyrefuses. The police did not interrogate appellant; therefore, the law regarding post-arrest silence cannot

apply.{¶ 39} Furthermore, it is appellant's counsel who asked Williams whether he asked her client questions.For her to come back now and argue that the state engaged in prosecutorial misconduct is withoutmerit. Testimony that is made in response to a question posed by appellant's own attorney raises thedoctrine of "invited error." The "invited error" doctrine prohibits a party from raising an error on appealwhich she herself invited or induced the trial court to make. State ex rel. Fowler v. Smith (1994), 68Ohio St.3d 357, 359, 626 N.E.2d 950; Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310,313, 511 N.E.2d 106. Therefore, appellant is precluded from raising this issue on appeal.{¶ 40} Nonetheless, appellant argues this point further, saying the court erred in allowing theprosecutor to comment during his closing argument on appellant's decision to run away instead ofasking McPherson why he pinned the Kia against the fence in the McDonald's parking lot. Theprosecutor suggested that if appellant were innocent, he should not have run from the parking lot. Thissuggestion was not an improper comment by the prosecutor on appellant's post-arrest silence. Theprosecutor raised a possible theory in his closing remarks, but the scenario he created focused onappellant's behavior before he was arrested. Appellant has not shown that the result of the trial wouldclearly have been different had the prosecutor not been allowed to offer this scenario. The state's theorydoes not rise to the level of plain error on the part of the trial court.*7 111411 Finally, appellant argues that it was improper for the court to admit McPherson's testimonyregarding a possible motive because it called for speculation. Again, appellant did not object to the

witness' testimony at the time of trial; therefore, absent plain error, he has waived this argument. We donot find that this testimonv rises to the level of plain error. Several times during direct examination, andthen by appellant's counsel on cross-examination, McPherson testified that he had no idea whyappellant would shoot at him. He testified it was possible the shooting had something to do with anargument he had had with a woman appellant knew; however, he followed up his responses with thefact that he only based his supposition on rumors. Clearly, McPherson did not create a solid motive onwhich the jury could hang its decision to convict. We do not believe McPherson's thoughts on apossible motive rise to the level of plain error.{¶ 42} Based on the foregoing reasons, we overrule appellant's first and second assignments of error.Right to a Fair Trial{¶ 43 }"III. The cumulative effect of the errors committed by the prosecutor and the court were soprejudicial that appellant was deprived of his right to a fair trial."{¶ 44} In his third assignment of error, appellant argues that the cumulative effect of the prosecutor'sindividual occasions of misconduct resulted in an unfair trial. While this court has overruled eachcomponent of appellant's previous two assignments of error, we will consider whether, collectively, theprosecutor's behavior denied appellant a fair trial. "Although violations of the Rules of Evidence duringtrial, singularly, may not rise to the level of prejudicial error, a conviction will be reversed where thecumulative effect of the errors deprives a defendant of the constitutional right to a fair trial." State v.DeMareo (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, paragraph two of the syllabus.{¶ 45} Based on our analysis above, we find the trial court did not err in calling McPherson as thecourt's witness, in permitting the testimony of the police officers regarding appellant's post-arrestsilence or with respect to out-of-court identifications, nor in permitting the prosecutor latitude in hisclosing statement. Any error committed was harmless error and did not prevent appellant fromreceiving a fair trial. Therefore, appellant's third assignment of error is overruled.Judgment is hereby affirmed.It is ordered that appellee recover from appellant costs herein taxed.The court finds there were reasonable grounds for this appeal.It is ordered that a special mandate issue out of this court directing the common pleas court to carry thisjudgment into execution. The defendant's conviction having been affirmed, any bail pending appeal isterminated. Case remanded to the trial court for execution of sentence.A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of AppellateProcedure.

PATRICIA ANN BLACKMON, J., CONCURS.

ANN DYKE, J., CONCIJRS IN JUDGMENT ONLY.Ohio App. 8 Dist.,2007.State v. CurrySlip Copy, 2007 WL 3105268 (Ohio App. 8 Dist.), 2007-Ohio-5721END