State v. Herring

• Decision Date: 02 March 2017
• Docket Number: No. 104441,104441
• Citation: 2017 Ohio 743,86 N.E.3d 133
• Parties: STATE of Ohio, Plaintiff–Appellee v. Kryan B. HERRING, Defendant–Appellant
• Court: Ohio Court of Appeals

86 N.E.3d 133

2017 Ohio 743

STATE of Ohio, Plaintiff–Appellee

v.Kryan B. HERRING, Defendant–Appellant

No. 104441

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: March 2, 2017

Joseph V. Pagano, P.O. Box 16869, Rocky River, Ohio 44116, ATTORNEY FOR APPELLANT

Michael C. O'Malley, Cuyahoga County Prosecutor By: Aqueelah A. Jordan, Assistant Prosecuting Attorney, Justice Center—8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE

BEFORE: S. Gallagher, J., Kilbane, P.J., and Stewart, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, JUDGE

{¶ 1} Kryan Herring appeals from a verdict finding him guilty of aggravated burglary, two counts of robbery against separate victims, disrupting public service, grand theft, domestic violence, and endangering a child. Herring also challenges as excessive the resulting prison sentence of 19.5 years from consecutive service of the individual sentences—nine years on the aggravated burglary, six years on the robbery, and 18 months each on the disrupting telephone service, grand theft, and domestic violence convictions. We affirm the judgment of the trial court.

{¶ 2} The victim had a relationship with Herring in the past, and the two maintained contact afterwards. The couple had a child together, who lived with the victim. The victim also had two other children. Herring and the victim got into an oral argument one night in April 2015, but Herring left the victim's home without any incident. He returned the next morning in an attempt to get the keys to his car. Herring believed that the victim was hiding his keys, and he viciously attacked her when she told him otherwise. One of the children, Herring's child in fact, tried to intercede but only managed to have Herring push her aside, although the child described it as being punched. The children testified that Herring did not live in the house, and everyone confirmed that Herring did not have keys to or possessions in the residence. Herring also did not have any keys to the victim's car that he took; the keys he used belonged to the victim.

{¶ 3} While Herring was beating her, the victim tried to call the police, but Herring interceded. The victim threw the phone to her 8-year-old daughter who tried to call the police. Herring grabbed the phone from the child. It is unclear what happened to the phone. The victim ran from the house and called the police from a neighbor's residence. During that time, Herring stole the victim's car and fled the scene.

{¶ 4} After the police arrived and took the victim to the hospital for treatment, Herring returned to the house while the older, teenaged daughter was home. Herring broke into the house by kicking through the back door. Herring again began searching through the victim's belongings for his car keys. Herring left before the daughter could summon help.

{¶ 5} Herring was arrested on May 7, 2015, and the arraignment was scheduled for June 10. Although the docket reflects that Herring was not in custody before the arraignment, the state assumed he was in custody between May 7 and the June 10 arraignment; 102 speedy-trial days occurred. Herring absconded after June 10 and was not brought into custody until October 29, 2015. On November 5, the state filed a demand for discovery, and 24 more speedy-trial days occurred. Nothing in the record indicates when Herring answered discovery. Nevertheless, Herring requested several continuances before the pretrial conference was finally held on February 25, 2016, and another pretrial conference was set for March 3, which actually occurred on March 10 because of Herring. Another 21 triple-counted days were added to the ongoing tally. The March 14 trial date was pushed back for two weeks upon Herring's request, leading to 54 additional days. At the end of March, the trial court became unavailable, and as a result, trial did not commence until April 4. Twenty-four days were added to the final tally. Giving Herring the benefit of every doubt, only 225 days counted toward the state's 270–day limit between arrest and trial. Herring turned down the state's offer to plead guilty to grand theft and domestic violence with all other charges, including the aggravated burglary, to be nolled.

{¶ 6} At trial, the victim's children testified that Herring did not live at their home. The victim testified last. Despite what she had told police officers, the victim claimed that Herring lived with her and the children. Out of the jury's presence, the trial court inquired into the victim's testimony, demonstrably put off by the victim's failure to timely appear for trial and for claiming Herring lived with her despite the unequivocal evidence to the contrary. The trial court reminded the victim of her oath and the consequences of perjury and allowed the state an opportunity to privately discuss the situation with the victim. Upon returning to the record, still outside the presence of the jury, it was determined that during trial, Herring had used another inmate's phone privileges to give out the victim's telephone number. The victim told the court she had lied about Herring living with her because people were contacting her telling her to do so in order to create doubt as to the aggravated burglary charge. The trial court allowed the state to recall the victim, who then told the jury what had transpired and that Herring did not live with her. The recorded jail-house calls were played to demonstrate why the victim originally lied. Herring unsuccessfully objected, claiming that the recorded calls violated Evid.R. 404(B) and recalling the witness was a violation of his due process rights.

{¶ 7} This timely appeal followed, in which Herring advanced seven assignments of error.

{¶ 8} Herring claims his federal and state constitutional rights to a speedy trial were violated because he was arrested in May 2015 and trial did not commence until April 2016. Such an argument is unpersuasive because it ignores the significant tolling that was attributed to Herring's failure to appear at his arraignment and his repeated requests for continuances of court dates after he was brought into custody at the end of October 2015. The state had 270 days to commence trial. R.C. 2945.71(C) - (E). At best, considering the tolling events and Herring's disappearance, only 225 days counted toward that limit.

{¶ 9} Further, ignoring the delay in bringing Herring into custody after the missed arraignment, less than 12 months transpired from his May 2015 arrest until the April 2016 trial under the federal speedy trial analysis. State v. Winn, 8th Dist. Cuyahoga No. 98172, 2012-Ohio-5889, 2012 WL 6513616, ¶ 44, citing Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (defendant must make a threshold showing of presumptively prejudicial delay before triggering any further analysis, presumptively prejudicial being defined as a period of one year). Herring's trial occurred in a timely fashion.

{¶ 10} At trial, the victim initially told the jury that Herring lived with her at the house, despite the children testifying to the contrary. The victim's testimony was fabricated. It was determined that Herring violated a no-contact order and had others contact the victim inducing her false testimony. The trial court allowed the state to recall the victim to the stand to correct her testimony and allowed the state to play the jail-house recordings to explain the victim's action to the jury.

{¶ 11} Herring claims that the recorded conversations violated Evid.R. 404(B) and 403 because the state did not have a legitimate basis for allowing the admission of the evidence. Herring solely relies on the dissenting opinion in State v. Carter, 8th Dist. Cuyahoga No. 90796, 2009-Ohio-226, 2009 WL 147386, as authority requiring the exclusion of the recordings. We are bound to follow the majority analysis from Carter —that telephone recordings painting the offender in a bad light are admissible for other legitimate purposes under Evid.R. 404(B). The cited authority supports the trial court's decision to admit the evidence, and Herring has not presented any reasons for us to distinguish or seek en banc review of Carter.

{¶ 12} Evid.R. 404(B) states the following:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Id. at ¶ 39. The evidence, in this case, was presented not to prove bad character of the accused or that he acted in conformity with that character, but for the purpose of explaining to the jury why the victim lied about Herring's living situation. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278. Herring has not demonstrated that the evidence was unduly prejudicial; his sole focus was that the evidence was introduced to prove conformity with other uncharged conduct.

{¶ 13} Furthermore, as Herring conceded, there is no error in merely warning a witness of the consequences of perjury. United States v. Stuart, 507 F.3d 391, 398 (6th Cir.2007). The victim ultimately testified at trial despite Herring's actions, and the testimony was corroborated by the victim's children. The trial court's admonishment about the consequences of perjury only prejudiced Herring insomuch as his attempt to illegally induce contrary evidence was unsuccessful. The trial court did not err when it warned the victim of the consequences of her false testimony. Id.

{¶ 14} And finally on this issue, not every out-of-court statement implicates the Confrontation Clause as Herring claims. See, e.g., State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 88. Herring's sole argument regarding the victim's testimony that implicated Herring in violating the no-contact order through third par...